UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LASHAWN A et al ) ) Plaintiffs ) ) v ) Civil Action No 89-1754 (TFH) ) ADRIAN M FENTY et al ) ) Defendants ) ____________________________________)

DEFENDANTSrsquo MOTION TO ESTABLISH A DEFINITIVE TIMELINE FOR TERMINATION OF THE CONSENT DECREE

Defendants hereby respectfully request that the Court expedite a process for the

termination of the consent decree To this end the defendants ask that this Court approve the

Districtrsquos recently proposed six-month plan with addendum and upon its conclusion adopt

specific exit criteria narrowly designed to address any remaining District law violations The

defendants also request that the time set for any monitoring of exit criteria be brief The

overriding purpose of this motion is to return the Child and Family Services Agency (CFSA) to

the Districtrsquos full control within a year This request is made because the unusual and

compelling circumstances necessary to justify court oversight of an executive branch agency no

longer exist with regard to CFSA

SUMMARY OF POSITION

At the outset the District notes that fundamental public policy interests favor returning

CFSA to District control rather than continuing court supervision First as the courts have

recognized local government control fosters innovation The return of local control allows

government officials ndash who by law are presumed to have a high degree of competence in

carrying out their official duties ndash to bring new insights and solutions to problems of allocating

revenues and resources

The continuation of court supervision also raises ever-increasing concerns about

separation of powers Governmental officials who enter consent decrees bind all their successors

into the indefinite future even to terms that might never have been entered had the matter been

litigated to full conclusion As a result consent decrees deprive future officials of their

designated legislative and executive powers

Moreover judicial control severs the democratic link between citizens and their elected

officials By reducing elected officialsrsquo control over agency management the enforcement of

consent decrees lessens the ability of citizens to hold their elected officials accountable The

return of local control allows citizens to participate in decision-making and allows officials to be

more responsive to their constituentsrsquo concerns

Consent decrees also impose considerable legal and administrative expenses on local

government and its taxpayers By any standard the collective payments to the Court Monitor

and plaintiffsrsquo attorneys in this case over the years have been extraordinary amounting to over

$7 million since 1999 The present process-intensive monitoring also consumes the time and

resources of agency officials and its onerous burdens hamper recruitment of visionary high-

level managers to work for the agency Simply stated it is hard to attract high-caliber

professionals because of the overwhelmingly intrusive nature of this litigation

The District believes that this case is now at the point where these adverse effects

outweigh any benefit of further court supervision The fundamental rationale for court

supervision ndash to correct the systemic violations of local law originally found by the Court in

2

1991 ndash has been satisfied The District is now in compliance with statutory requirements in a full

range of areas such as the timeliness of investigations provision of preventative services

placement case planning periodic reviews and monitoring foster homes and institutions In

those few remaining areas where legal compliance can be improved the District is making

effective and appropriate efforts

Court supervision is also no longer necessary in light of the Districtrsquos substantial good

faith compliance with Court Orders for many years In 2001 the District complied with the

court-mandated requirements for the termination of the Receivership After the termination of

the Receivership the District further met the requirements for its probationary period which

ended in 2003 The District subsequently accomplished many of the benchmarks set forth in an

implementation plan and where those benchmarks were not met the District agreed to an

amended plan

Recent events also show the Districtrsquos good faith In the first half of 2008 CFSA had an

historic increase in reports of abuse and neglect and staff turnover In July the plaintiffs filed a

contempt motion which the District argued was unfounded Nevertheless at the urging of the

plaintiffs and the Court Monitor the District retained the Public Catalyst Group (PCG) as an

expert to review the agency and make recommendations In addition the District agreed to a

Stipulated Order with a range of obligations The District met or exceeded those obligations and

it drafted a plan for the subsequent six months based on the recommendations of PCG

In response to the Districtrsquos good faith efforts and success the plaintiffs filed a renewed

contempt motion thereby exemplifying how the plaintiffsrsquo continuation of this case has gone

beyond any proper purpose The renewed contempt motion reveals the plaintiffsrsquo counselrsquos

unwillingness to recognize the significant accomplishments achieved since 1991 as well as their

3

vested interest in perpetuating this lawsuit indefinitely untethered from the resolution of any

statutory violations

Major structural changes are additional circumstances warranting the end of court

supervision CFSA is now a cabinet-level agency with vastly improved budget and staffing It

has established a new investigation process for reports of abuse and neglect With better

supervision and staffing social worker caseloads have plummeted from where they were in

1991 CFSA has an automated case tracking system that is now state-of-the-art The law has

been updated and new regulations on foster homes and institutions have been promulgated

Internal and external monitoring exists apart from court oversight and legal support functions

have also improved In essence the agency has been completely transformed since 1991

A final changed circumstance is the current fiscal constraints arising from the current

economic climate In light of these fiscal constraints the large legal and administrative expenses

incurred by virtue of court supervision constitute an unjustifiable drain on scarce District

resources

For all these reasons this Court should initiate the termination of the consent decree The

District proposes that the Court approve its proposed six month plan with addendum to be

followed by the adoption of specific exit criteria The exit criteria would be narrowly designed

to address state law violations if any that remain at the conclusion of the six-month plan being

considered by the Court Any monitoring of these exit criteria should be extremely brief so that

full control of CFSA is returned to the local government within a year

4

ARGUMENT

I IT IS NO LONGER EQUITABLE FOR THE CONSENT DECREE TO REMAIN IN EFFECT

A partyrsquos request for relief from a consent decree relies on ldquothe courtrsquos equitable powers

and the direction given by the Federal Rules of Civil Procedurerdquo Frew v Hawkins 540 US

431 441 (2004) ldquoIn particular Rule 60(b)(5) allows a party to move for relief if lsquoit is no longer

equitable that the judgment should have prospective applicationrsquordquo Id quoting Fed R Civ P

60(b)(5) The Rule ldquoencompasses the traditional power of a court of equity to modify its decree

in light of changed circumstancesrdquo Frew 540 US at 441 Where consent decrees involve

institutional reform litigation the Supreme Court emphasized that district courts should apply a

ldquoflexible standardrdquo to modify consent decrees when a significant change in circumstances

occurs Id quoting Rufo v Inmates of Suffolk County Jail 502 US 367 393 (1992)

The district court has discretion whether to terminate a consent decree McDonald v

Carnahan 109 F3d 1319 1321 (8th Cir 1997) In making this decision the district court should

determine whether the decreersquos basic purpose of correcting the original violations of law has

been achieved and whether recurring violations of law would be likely once the decree has been

lifted Board of Education v Dowell 498 US 237 247 (1991) (ldquoIn the present case a finding

by the District Court that [the agency] was being operated in compliance with the commands of

the [Constitution] and that it was unlikely the [agency] would return to its former ways would be

a finding that the purposes of the litigaton have been fully achievedrdquo) In weighing the

likelihood of recurring violations the court should consider the local authoritiesrsquo ldquogood faithrdquo

compliance with the decree ldquofor a reasonable period of timerdquo Id at 248-49

5

A Public Policy Favors Local Control Rather Than Court Supervision Over Government Agencies

In its unanimous decision in Frew the Supreme Court held that consent decrees in

institutional reform litigation should be closely limited in scope and duration so that agency

functions are promptly returned to local control A federal district court ldquomust exercise its

equitable powers to ensure that when the objects of the decree have been attained responsibility

for discharging the Statersquos obligations is returned promptly to the State and its officialsrdquo 540

US at 442 (emphasis added)

The Supreme Court elaborated on the important benefits of returning local programs to

local government control First local control is essential to progress and innovation The Court

explained

As public servants the officials of the State must be presumed to have a high degree of competence in deciding how best to discharge their governmental responsibilities A State in the ordinary course depends upon successor officials both appointed and elected to bring new insights and solutions to problems of allocating revenues and resources

Id at 442 accord Dowell 498 US at 248 (ldquoLocal control [over local programs] allows

innovation so that [local programs] can fit local needsrdquo)

The Supreme Court was also concerned by the adverse effect of consent decrees on

separation of powers Consent decrees encroach on local executive and legislative functions

because those decrees bind successor government officials into the indefinite future even to

terms that might never have been entered had the matter been litigated to full conclusion Rufo

502 US at 392 The result is that ldquoif not limited to reasonable and necessary implementations of

federal law remedies outlined in consent decrees may improperly deprive future officials of

their designated legislative and executive powersrdquo Id at 441

6

The Frew Court also disfavored consent decrees because they impair the relationship

between citizens and their elected officials Frew noted the ldquolegitimaterdquo concern that

ldquoenforcement of consent decrees can undermine the accountability of state governmentsrdquo

Id These decrees deprive citizens of a voice through their elected officials in the operation of

their government Conversely through relief from such consent decrees ldquo[l]ocal control over

[local programs] allows citizens to participate in decisionmakingrdquo Dowell 498 US at 248

The Frew decision ultimately ldquostakes out a new positionrdquo in the law to ldquomake it easier for

governmental officials to obtain judicial approval when they seek to modify and terminate an

existing consent decreerdquo Ross Sandler amp David Schoenbrod The Supreme Court Democracy

And Institutional Reform Litigation 49 NYL Sch L Rev 915 919 (2005)

In recent years it is not only the Supreme Court but also the Congress that has

responded to limit enforcement of consent decrees in institutional reform litigation In enacting

the Prison Litigation Reform Act of 1995 18 USC sect 3626(b)(2) the Congress ldquoleft no doubtsrdquo

that it sought to curtail court management of state and local agency functions Taylor v United

States 181 F3d 1017 1027 n1 (9th Cir 1999) (Wardlaw J dissenting) citing eg 141 Cong

Rec S14418 (1995) (statement of Sen Hatch) (ldquoI believe that the courts have gone too far in

micromanaging our Nationrsquos prisonsrdquo) accord Plyler v Moore 100 F3d 365 370 (4th Cir

1996) cert denied 520 US 1277 (1997) (noting ldquoCongressrsquo purpose in enacting the PLRA

[was] to relieve states of the onerous burden of complying with consent decreesrdquo many of which

ldquoreach far beyond the dictates of federal lawrdquo)

Accordingly especially where as here defendants have cured the systemic violations of

law upon which the consent decree was originally predicated important public policy concerns

7

favor the prompt return of local government control rather than the continuation of federal court

supervision

B Defendants Have Corrected the Systemic Violations of the Law Originally Found

by the Court

Consideration of a motion to terminate a consent decree ldquomust begin by determining the

basic purpose of the decreerdquo United States v City of Miami 2 F3d 1497 1505 (11th Cir 1993)

In institutional reform cases a consent decreersquos basic purpose is correcting those systemic

violations of law originally found by the court or stipulated by the parties No other purpose

justifies the continuation of a consent decree in such cases Because in the present case the

District has corrected the systemic violations of the law identified in the Courtrsquos 1991 findings

the consent decreersquos basic purpose has been satisfied

1 A consent decreersquos only justified purpose is to directly address the original violation of law

In light of ldquoconsiderations about allocation of powers within our federal systemrdquo a

consent decree is limited to remedying the substantive law violation As the Supreme Court

explained in Milliken v Bradley 433 US 267 (1977)

Federal-court decrees must directly address and relate to the [] violation [of the law] itself Because of this inherent limitation upon federal judicial authority federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the [applicable law] or does not flow from such a violation

Id at 282 quoted in Dowell 498 US at 247

This limitation on consent decrees ndash that they must be tailored to remedying violations of

the law ndash upholds the separation of powers ldquo[I]t is not the role of courts but that of the political

8

branches to shape the institutions of government in such fashion as to comply with the laws and

the Constitutionrdquo Lewis v Casey 518 US 343 350 (1996) Absent the violation of a legal

right a plaintiff may not ldquoinvoke intervention of the courtsrdquo simply because for example the

plaintiff is ldquobeing subject[ed] to a governmental institution that was not organized or managed

properlyrdquo Id

2 The decreersquos basic purpose of correcting the past systemic violations of

law has been met

As shown below the District has remedied the systemic violations identified in the

Courtrsquos 1991 findings in this case See LaShawn A v Dixon 762 F Supp 959 968-80 (DDC

1991) 1 The proper focus here is on correction of systemic violations of law not whether every

problem has been corrected See RC v Walley 475 F Supp 2d 1118 1144 (MD Ala 2007)

(considering system-wide compliance rather than isolated occurrences)

a Timeliness of abuse and neglect investigations

1991 Finding The Court found that DHSrsquo Child and Family Services Division

(ldquoDivisionrdquo) had ldquofailed to initiate investigations into reports of neglect or abuse within 24

hours and complete investigations within two weeksrdquo 762 F Supp at 970 See DC Code sect

6-2102 (1981 ed) (requiring CFSA to initiate investigations within 24 hours of receiving a 1 While the Court originally found violations of federal and local law subsequent decisions rely upon local law claims only See LaShawn A v Barry 144 F3d 847 852 854 (DC Cir 1998) (noting that ldquo[w]e have before us a consent decree based solely on local lawrdquo and rejecting as inadequate the ldquodistrict courtrsquos 1995 attempt to revive the federal law claimsrdquo) The Court cited federal statutory provisions in its 1991 findings regarding investigations 42 USC sect 5106a preventative services 42 USC sect 5106 placement 42 USC sect 672 case planning services and periodic reviews 42 USC sect 675 and case tracking 42 USC 627 The federal provisions however do not include a private right of action See Suter v Artist M 503 US 347 (1992) Rather the provisions govern grants awarded to states and other federal funding mandates

9

report of neglect) In April 1990 the Division failed to initiate nearly 50 percent of the

reports received within 24 hours Id at 969 The Division ldquoended each month between July

1989 and May 1990 with an average backlog of approximately 1200 reports for which it had

not completed investigationsrdquo Id

Present Based on December 2008 data CFSA initiated or attempted to initiate

70 of investigations within 24 hours of receipt of a report of abuse or neglect and CFSA

initiated or attempted to initiate 90 of investigations within 48 hours (Exh A Birdsong

Decl at 3) As of December 31 2008 only 42 of 405 investigations (about 10) were open

longer than 30 days (Id at 15) See DC Code sectsect 4-130104(b) 4-130106(a) (2001 ed

2008 Repl) (setting a 30-day timeframe for completing investigations)

b Provision of preventative services

1991 finding The Court found ldquothat defendants have consistently failed to

provide [preventative] services or otherwise use lsquoreasonable effortsrsquo to prevent placementrdquo

762 F Supp at 970 See DC Code sectsect 6-2105 6-2124 (1981 ed) (requiring the Division to

provide services to enable a child for whom a report has been made to remain in the home

unless removal is necessary) In support of this finding the Court noted that the Division did

not have drug treatment services or counseling services for parents with substance abuse or

mental health problems and that it did not have housing or job services for parents with

housing or unemployment problems Id

Present As of December 31 2008 CFSA served 2070 children (or 757 families)

where children have remained home following an investigation (Exh A Birdsong Decl at

5) In addition during the first quarter of fiscal year 2009 CFSA referred 413 cases to the

Healthy FamiliesThriving Communities Collaboratives to provide a range of services

10

including short term crisis services case management services and youth aftercare (Exh B

Abney Decl at 3) See also the Court Monitorrsquos July 19 2006 Report at 22-24 (detailing the

significant enhancements in the amount and type of services offered to children and families

since this lawsuit began)

c Placement Voluntary and emergency care

1991 finding The Court found ldquothat the [Division] consistently failed to

comply with the statutory time limits regarding voluntary and emergency carerdquo 762 F

Supp at 971 See DC Code sect 6-2123(a)(2) (1981 ed) (mandating that ldquowithin 90 days of

taking a child into custody [the Division must] return the child to the home or request the

filing of a neglect petition in the Family Division of the Superior Court of the District of

Columbiardquo) In support of its finding the Court noted that as of April 1988 the District did

not have an accurate listing of children in voluntary placements and that one of the named

plaintiffs was in voluntary care for two-and-a-half years Id

Present In December 2008 there were no children in voluntary placements In

addition CFSA does not have any children in ldquoemergencyrdquo care over 90 days without a

petition to the Family Court (Exh A Birdsong Decl at 6) CFSA has a practice of

petitioning cases whenever a child is removed beyond a five-day hold As reported by the

Court Monitor in July 2006 ldquo[t]he District has eliminated the inappropriate use of emergency

care and instituted appropriate child welfare practice of removing children from their homes

only with the sanction of a court orderrdquo (July 19 2006 Report at 40)

11

d Least restrictive placement

1991 finding The Court found that ldquothe [Division] consistently failed to place

children in the least restrictive placements consistent with their needsrdquo 762 F Supp at 972

See DC Code sect 4-130109 (2001 ed) (requiring Division to provide the least restrictive

placement consistent with a childrsquos needs) The District lacked therapeutic foster homes

foster homes to provide short-term or emergency care and sufficient homes to place babies

who have HIV Id It did not maintain an information system to identify vacancies in foster

and group homes and it allowed children to spend entire days in Division offices while the

social workers attempted to find placements Id

Present CFSA maintains a range of placement options to include short-term

care beds therapeutic placements traditional foster care beds medically fragile foster care

beds and congregate care (Exh C Forbes Decl at 3) The list of foster and congregate care

vacancies is updated daily and the list of contracted foster care vacancies is updated weekly

(Id) No children have stayed overnight in CFSA offices because of a lack of placements

since 2005 (Id) In addition as of December 31 2008 70 of children in care are placed in

family-based settings (Exh A Birdsong Decl at 4) See also July 19 2006 Report at 42

(ldquoThe District has made noteworthy advances in the area of placement of children CFSA

has created a separate placement administration to coordinate all placement requests and to

more expeditiously identify placement resources Treatment foster care is now an option for

children entering placement who need itrdquo)

12

e Case Planning

1991 finding The Court found that the Division ldquofrequently assigns inappropriate

goals to the children in its foster care and consistently fails to prepare written case plans to

enable the children to realize their goalsrdquo 762 F Supp at 973-74 See DC Code sect 6-

2107(b) (1981 ed) (requiring the Division to prepare timely case plans for all children in

foster care) The Court noted that 62 of children with a goal of return home did not have a

written case plan as of December 1989 Id at 973

Present CFSA is required to assure that each child has a case plan and that for

children placed outside the home that the plans are reviewed periodically to determine inter

alia continuing necessity of placement and compliance with the case plan See DC Code

sect 4-130109(d) (e) (2001 ed 2008 Repl) As of December 31 2008 96 of children had

timely case plans prepared (Exh A Birdsong Decl at 7) As of November 2008 95 of

children have appropriate goals in their case plans (Court Monitorrsquos January 26 2009

Update at 5) As reported by the Court Monitor ldquoCFSA has made a philosophical shift to

emphasize the Agencyrsquos responsibility to develop plans with families to ensure the safety

permanency and well-being of their childrenrdquo (July 19 2006 Report at 59)

f Services

1991 finding The Court found that the Division ldquoconsistently failed to provide

services once children are removed from their homes and placed in foster carerdquo 762 F

Supp at 974 See DC Code sect 4-130303 (2001 ed 2008 Repl) (requiring CFSA to

maintain and provide treatment and services to families and children where there has been an

abuse or neglect finding) The finding relied upon the Divisionrsquos policy that children

13

entering care undergo a complete medical evaluation prior to placement and that children in

foster care have a monthly face-to-face contact with a social worker Id As of 1989

services were not provided in 77 of cases with a goal of return home (where the children

had entered foster care through voluntary placement) 44 of children did not have a medical

evaluation since entering care and for 64 of children with a plan of return home there was

no evidence that the children had ever been visited by a social worker Id

Present As of December 31 2008 79 of children entering or re-entering care

received a pre-placement medical screening and 87 of the children entering or re-entering

care received a post-placement medical evaluation within 30 days of placement (Exh A

Birdsong Decl at 8-9) The District has also undertaken efforts to improve these numbers

even further See Section C2 infra at 20-22 With regard to social worker visits 96 of the

children in foster care were visited by a social worker at least once and 87 were visited at

least twice in December 2008 (Birdsong Decl at 10) See also July 19 2006 Report at 80

(ldquoCFSA has greatly improved the way in which it supervises placements of children in foster

care CFSA assigns workers to each child and family foster families know their workers and

the level of contact between families and workers has increased substantially since the end of

the Receivershiprdquo)

g Periodic reviews

1991 finding The Court found that the Division consistently failed to provide

ldquoperiodic judicial or administrative reviews for the purpose of determining the continued

need for and appropriateness of placementrdquo 762 F Supp at 974 See DC Code sect 16-2323

(1981 ed) As of December 1989 only 13 of children in foster care received timely

reviews Id

14

Present As of December 31 2008 CFSA timely completed administrative

reviews for 96 of the 2015 children who require administrative reviews (Exh A Birdsong

Decl at 11)

h Adoption

1991 finding The Court found that the Division ldquohas consistently failed to

expedite the progression of the children in its custody toward permanent placement through

adoptionrdquo 762 F Supp at 975 See DC Code sect 6-2123 (1981 ed) (requiring the Division

to prepare a permanent plan for a child who cannot be returned home within a reasonable

time) As of 1989 66 of children with a goal of adoption had not been legally freed for

adoption Id

Present As of February 4 2007 97 of children with a goal of adoption have

had legal action to free them for adoption2 See DC Code sect 16-2323(c)(2) (2001 ed 2008

Supp) (Exh D Reese Decl at para 7)

i Monitoring foster homes and institutions

1991 finding The Court found that the Division ldquoconsistently failed to monitor

foster homes and institutions in accordance with the requirements of District lawrdquo 762 F

Supp at 979 See DC Code sectsect 3-802 3-805 (1981 ed) (requiring facilities providing foster

care to be licensed and inspected annually) In support of this finding the Court noted that

2 The AIP requires that the legal action be taken within 45 days of the goal changing to adoption however the data provided herein reflects legal action taken regardless of the time Also FACES data shows 83 but a manual count shows that 97 of children with a goal of adoption have had legal action taken to free them for adoption The additional 69 children who had legal action were not properly documented in FACES

15

ldquobetween 1988 and July 1990 the Monitoring Unit failed to monitor any of the foster homes

operated by the Consortium for Child Welfare in which District children were placedrdquo Id

Present In 2001 the District enacted a regulatory framework to govern foster

and group homes See generally 29 DCMR sect 6000 et seq 29 DCMR sect 6200 et seq As

of December 31 2008 current licenses existed for 90 of the 1013 foster homes and 74

of the 121 group homes where children are placed (Exh A Birdsong Decl at 12-13) Prior

to receiving a license foster homes and group homes are inspected foster home licenses are

valid for two years and group home licenses are valid for one year See 29 DCMR sect

6030 29 DCMR sect 6210 In addition to the inspections conducted through the licensing

process CFSA conducts monitoring visits of the homes During 2008 congregate care

monitors performed 311 announced and 267 unannounced monitoring visits at group homes

and independent living locations (Exh E Douglas Decl at 4) In August 2008 foster home

monitors visited 410 children in 227 foster homes (Id at 3)

As shown above the District has remedied the host of statutory violations originally

found by the Court The above analysis is not intended to suggest that there is no room for

improvement As also discussed in the next section the District is making appropriate efforts

where improvements can be made See Section C2 infra at 20-22 The above analysis also

does not include additional ldquosystem infrastructurerdquo findings of the Court in 1991 ndash regarding

case tracking caseloads supervision and training ndash which were not based on a specific statutory

requirement and thus cannot be bases for continuation of the consent decree 762 F Supp at

976-79 The subsequent overhaul in system infrastructure is nevertheless addressed as a separate

basis for terminating the consent decree See Section D infra at 22-27 The point here remains

16

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

government officials ndash who by law are presumed to have a high degree of competence in

carrying out their official duties ndash to bring new insights and solutions to problems of allocating

revenues and resources

The continuation of court supervision also raises ever-increasing concerns about

separation of powers Governmental officials who enter consent decrees bind all their successors

into the indefinite future even to terms that might never have been entered had the matter been

litigated to full conclusion As a result consent decrees deprive future officials of their

designated legislative and executive powers

Moreover judicial control severs the democratic link between citizens and their elected

officials By reducing elected officialsrsquo control over agency management the enforcement of

consent decrees lessens the ability of citizens to hold their elected officials accountable The

return of local control allows citizens to participate in decision-making and allows officials to be

more responsive to their constituentsrsquo concerns

Consent decrees also impose considerable legal and administrative expenses on local

government and its taxpayers By any standard the collective payments to the Court Monitor

and plaintiffsrsquo attorneys in this case over the years have been extraordinary amounting to over

$7 million since 1999 The present process-intensive monitoring also consumes the time and

resources of agency officials and its onerous burdens hamper recruitment of visionary high-

level managers to work for the agency Simply stated it is hard to attract high-caliber

professionals because of the overwhelmingly intrusive nature of this litigation

The District believes that this case is now at the point where these adverse effects

outweigh any benefit of further court supervision The fundamental rationale for court

supervision ndash to correct the systemic violations of local law originally found by the Court in

2

1991 ndash has been satisfied The District is now in compliance with statutory requirements in a full

range of areas such as the timeliness of investigations provision of preventative services

placement case planning periodic reviews and monitoring foster homes and institutions In

those few remaining areas where legal compliance can be improved the District is making

effective and appropriate efforts

Court supervision is also no longer necessary in light of the Districtrsquos substantial good

faith compliance with Court Orders for many years In 2001 the District complied with the

court-mandated requirements for the termination of the Receivership After the termination of

the Receivership the District further met the requirements for its probationary period which

ended in 2003 The District subsequently accomplished many of the benchmarks set forth in an

implementation plan and where those benchmarks were not met the District agreed to an

amended plan

Recent events also show the Districtrsquos good faith In the first half of 2008 CFSA had an

historic increase in reports of abuse and neglect and staff turnover In July the plaintiffs filed a

contempt motion which the District argued was unfounded Nevertheless at the urging of the

plaintiffs and the Court Monitor the District retained the Public Catalyst Group (PCG) as an

expert to review the agency and make recommendations In addition the District agreed to a

Stipulated Order with a range of obligations The District met or exceeded those obligations and

it drafted a plan for the subsequent six months based on the recommendations of PCG

In response to the Districtrsquos good faith efforts and success the plaintiffs filed a renewed

contempt motion thereby exemplifying how the plaintiffsrsquo continuation of this case has gone

beyond any proper purpose The renewed contempt motion reveals the plaintiffsrsquo counselrsquos

unwillingness to recognize the significant accomplishments achieved since 1991 as well as their

3

vested interest in perpetuating this lawsuit indefinitely untethered from the resolution of any

statutory violations

Major structural changes are additional circumstances warranting the end of court

supervision CFSA is now a cabinet-level agency with vastly improved budget and staffing It

has established a new investigation process for reports of abuse and neglect With better

supervision and staffing social worker caseloads have plummeted from where they were in

1991 CFSA has an automated case tracking system that is now state-of-the-art The law has

been updated and new regulations on foster homes and institutions have been promulgated

Internal and external monitoring exists apart from court oversight and legal support functions

have also improved In essence the agency has been completely transformed since 1991

A final changed circumstance is the current fiscal constraints arising from the current

economic climate In light of these fiscal constraints the large legal and administrative expenses

incurred by virtue of court supervision constitute an unjustifiable drain on scarce District

resources

For all these reasons this Court should initiate the termination of the consent decree The

District proposes that the Court approve its proposed six month plan with addendum to be

followed by the adoption of specific exit criteria The exit criteria would be narrowly designed

to address state law violations if any that remain at the conclusion of the six-month plan being

considered by the Court Any monitoring of these exit criteria should be extremely brief so that

full control of CFSA is returned to the local government within a year

4

ARGUMENT

I IT IS NO LONGER EQUITABLE FOR THE CONSENT DECREE TO REMAIN IN EFFECT

A partyrsquos request for relief from a consent decree relies on ldquothe courtrsquos equitable powers

and the direction given by the Federal Rules of Civil Procedurerdquo Frew v Hawkins 540 US

431 441 (2004) ldquoIn particular Rule 60(b)(5) allows a party to move for relief if lsquoit is no longer

equitable that the judgment should have prospective applicationrsquordquo Id quoting Fed R Civ P

60(b)(5) The Rule ldquoencompasses the traditional power of a court of equity to modify its decree

in light of changed circumstancesrdquo Frew 540 US at 441 Where consent decrees involve

institutional reform litigation the Supreme Court emphasized that district courts should apply a

ldquoflexible standardrdquo to modify consent decrees when a significant change in circumstances

occurs Id quoting Rufo v Inmates of Suffolk County Jail 502 US 367 393 (1992)

The district court has discretion whether to terminate a consent decree McDonald v

Carnahan 109 F3d 1319 1321 (8th Cir 1997) In making this decision the district court should

determine whether the decreersquos basic purpose of correcting the original violations of law has

been achieved and whether recurring violations of law would be likely once the decree has been

lifted Board of Education v Dowell 498 US 237 247 (1991) (ldquoIn the present case a finding

by the District Court that [the agency] was being operated in compliance with the commands of

the [Constitution] and that it was unlikely the [agency] would return to its former ways would be

a finding that the purposes of the litigaton have been fully achievedrdquo) In weighing the

likelihood of recurring violations the court should consider the local authoritiesrsquo ldquogood faithrdquo

compliance with the decree ldquofor a reasonable period of timerdquo Id at 248-49

5

A Public Policy Favors Local Control Rather Than Court Supervision Over Government Agencies

In its unanimous decision in Frew the Supreme Court held that consent decrees in

institutional reform litigation should be closely limited in scope and duration so that agency

functions are promptly returned to local control A federal district court ldquomust exercise its

equitable powers to ensure that when the objects of the decree have been attained responsibility

for discharging the Statersquos obligations is returned promptly to the State and its officialsrdquo 540

US at 442 (emphasis added)

The Supreme Court elaborated on the important benefits of returning local programs to

local government control First local control is essential to progress and innovation The Court

explained

As public servants the officials of the State must be presumed to have a high degree of competence in deciding how best to discharge their governmental responsibilities A State in the ordinary course depends upon successor officials both appointed and elected to bring new insights and solutions to problems of allocating revenues and resources

Id at 442 accord Dowell 498 US at 248 (ldquoLocal control [over local programs] allows

innovation so that [local programs] can fit local needsrdquo)

The Supreme Court was also concerned by the adverse effect of consent decrees on

separation of powers Consent decrees encroach on local executive and legislative functions

because those decrees bind successor government officials into the indefinite future even to

terms that might never have been entered had the matter been litigated to full conclusion Rufo

502 US at 392 The result is that ldquoif not limited to reasonable and necessary implementations of

federal law remedies outlined in consent decrees may improperly deprive future officials of

their designated legislative and executive powersrdquo Id at 441

6

The Frew Court also disfavored consent decrees because they impair the relationship

between citizens and their elected officials Frew noted the ldquolegitimaterdquo concern that

ldquoenforcement of consent decrees can undermine the accountability of state governmentsrdquo

Id These decrees deprive citizens of a voice through their elected officials in the operation of

their government Conversely through relief from such consent decrees ldquo[l]ocal control over

[local programs] allows citizens to participate in decisionmakingrdquo Dowell 498 US at 248

The Frew decision ultimately ldquostakes out a new positionrdquo in the law to ldquomake it easier for

governmental officials to obtain judicial approval when they seek to modify and terminate an

existing consent decreerdquo Ross Sandler amp David Schoenbrod The Supreme Court Democracy

And Institutional Reform Litigation 49 NYL Sch L Rev 915 919 (2005)

In recent years it is not only the Supreme Court but also the Congress that has

responded to limit enforcement of consent decrees in institutional reform litigation In enacting

the Prison Litigation Reform Act of 1995 18 USC sect 3626(b)(2) the Congress ldquoleft no doubtsrdquo

that it sought to curtail court management of state and local agency functions Taylor v United

States 181 F3d 1017 1027 n1 (9th Cir 1999) (Wardlaw J dissenting) citing eg 141 Cong

Rec S14418 (1995) (statement of Sen Hatch) (ldquoI believe that the courts have gone too far in

micromanaging our Nationrsquos prisonsrdquo) accord Plyler v Moore 100 F3d 365 370 (4th Cir

1996) cert denied 520 US 1277 (1997) (noting ldquoCongressrsquo purpose in enacting the PLRA

[was] to relieve states of the onerous burden of complying with consent decreesrdquo many of which

ldquoreach far beyond the dictates of federal lawrdquo)

Accordingly especially where as here defendants have cured the systemic violations of

law upon which the consent decree was originally predicated important public policy concerns

7

favor the prompt return of local government control rather than the continuation of federal court

supervision

B Defendants Have Corrected the Systemic Violations of the Law Originally Found

by the Court

Consideration of a motion to terminate a consent decree ldquomust begin by determining the

basic purpose of the decreerdquo United States v City of Miami 2 F3d 1497 1505 (11th Cir 1993)

In institutional reform cases a consent decreersquos basic purpose is correcting those systemic

violations of law originally found by the court or stipulated by the parties No other purpose

justifies the continuation of a consent decree in such cases Because in the present case the

District has corrected the systemic violations of the law identified in the Courtrsquos 1991 findings

the consent decreersquos basic purpose has been satisfied

1 A consent decreersquos only justified purpose is to directly address the original violation of law

In light of ldquoconsiderations about allocation of powers within our federal systemrdquo a

consent decree is limited to remedying the substantive law violation As the Supreme Court

explained in Milliken v Bradley 433 US 267 (1977)

Federal-court decrees must directly address and relate to the [] violation [of the law] itself Because of this inherent limitation upon federal judicial authority federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the [applicable law] or does not flow from such a violation

Id at 282 quoted in Dowell 498 US at 247

This limitation on consent decrees ndash that they must be tailored to remedying violations of

the law ndash upholds the separation of powers ldquo[I]t is not the role of courts but that of the political

8

branches to shape the institutions of government in such fashion as to comply with the laws and

the Constitutionrdquo Lewis v Casey 518 US 343 350 (1996) Absent the violation of a legal

right a plaintiff may not ldquoinvoke intervention of the courtsrdquo simply because for example the

plaintiff is ldquobeing subject[ed] to a governmental institution that was not organized or managed

properlyrdquo Id

2 The decreersquos basic purpose of correcting the past systemic violations of

law has been met

As shown below the District has remedied the systemic violations identified in the

Courtrsquos 1991 findings in this case See LaShawn A v Dixon 762 F Supp 959 968-80 (DDC

1991) 1 The proper focus here is on correction of systemic violations of law not whether every

problem has been corrected See RC v Walley 475 F Supp 2d 1118 1144 (MD Ala 2007)

(considering system-wide compliance rather than isolated occurrences)

a Timeliness of abuse and neglect investigations

1991 Finding The Court found that DHSrsquo Child and Family Services Division

(ldquoDivisionrdquo) had ldquofailed to initiate investigations into reports of neglect or abuse within 24

hours and complete investigations within two weeksrdquo 762 F Supp at 970 See DC Code sect

6-2102 (1981 ed) (requiring CFSA to initiate investigations within 24 hours of receiving a 1 While the Court originally found violations of federal and local law subsequent decisions rely upon local law claims only See LaShawn A v Barry 144 F3d 847 852 854 (DC Cir 1998) (noting that ldquo[w]e have before us a consent decree based solely on local lawrdquo and rejecting as inadequate the ldquodistrict courtrsquos 1995 attempt to revive the federal law claimsrdquo) The Court cited federal statutory provisions in its 1991 findings regarding investigations 42 USC sect 5106a preventative services 42 USC sect 5106 placement 42 USC sect 672 case planning services and periodic reviews 42 USC sect 675 and case tracking 42 USC 627 The federal provisions however do not include a private right of action See Suter v Artist M 503 US 347 (1992) Rather the provisions govern grants awarded to states and other federal funding mandates

9

report of neglect) In April 1990 the Division failed to initiate nearly 50 percent of the

reports received within 24 hours Id at 969 The Division ldquoended each month between July

1989 and May 1990 with an average backlog of approximately 1200 reports for which it had

not completed investigationsrdquo Id

Present Based on December 2008 data CFSA initiated or attempted to initiate

70 of investigations within 24 hours of receipt of a report of abuse or neglect and CFSA

initiated or attempted to initiate 90 of investigations within 48 hours (Exh A Birdsong

Decl at 3) As of December 31 2008 only 42 of 405 investigations (about 10) were open

longer than 30 days (Id at 15) See DC Code sectsect 4-130104(b) 4-130106(a) (2001 ed

2008 Repl) (setting a 30-day timeframe for completing investigations)

b Provision of preventative services

1991 finding The Court found ldquothat defendants have consistently failed to

provide [preventative] services or otherwise use lsquoreasonable effortsrsquo to prevent placementrdquo

762 F Supp at 970 See DC Code sectsect 6-2105 6-2124 (1981 ed) (requiring the Division to

provide services to enable a child for whom a report has been made to remain in the home

unless removal is necessary) In support of this finding the Court noted that the Division did

not have drug treatment services or counseling services for parents with substance abuse or

mental health problems and that it did not have housing or job services for parents with

housing or unemployment problems Id

Present As of December 31 2008 CFSA served 2070 children (or 757 families)

where children have remained home following an investigation (Exh A Birdsong Decl at

5) In addition during the first quarter of fiscal year 2009 CFSA referred 413 cases to the

Healthy FamiliesThriving Communities Collaboratives to provide a range of services

10

including short term crisis services case management services and youth aftercare (Exh B

Abney Decl at 3) See also the Court Monitorrsquos July 19 2006 Report at 22-24 (detailing the

significant enhancements in the amount and type of services offered to children and families

since this lawsuit began)

c Placement Voluntary and emergency care

1991 finding The Court found ldquothat the [Division] consistently failed to

comply with the statutory time limits regarding voluntary and emergency carerdquo 762 F

Supp at 971 See DC Code sect 6-2123(a)(2) (1981 ed) (mandating that ldquowithin 90 days of

taking a child into custody [the Division must] return the child to the home or request the

filing of a neglect petition in the Family Division of the Superior Court of the District of

Columbiardquo) In support of its finding the Court noted that as of April 1988 the District did

not have an accurate listing of children in voluntary placements and that one of the named

plaintiffs was in voluntary care for two-and-a-half years Id

Present In December 2008 there were no children in voluntary placements In

addition CFSA does not have any children in ldquoemergencyrdquo care over 90 days without a

petition to the Family Court (Exh A Birdsong Decl at 6) CFSA has a practice of

petitioning cases whenever a child is removed beyond a five-day hold As reported by the

Court Monitor in July 2006 ldquo[t]he District has eliminated the inappropriate use of emergency

care and instituted appropriate child welfare practice of removing children from their homes

only with the sanction of a court orderrdquo (July 19 2006 Report at 40)

11

d Least restrictive placement

1991 finding The Court found that ldquothe [Division] consistently failed to place

children in the least restrictive placements consistent with their needsrdquo 762 F Supp at 972

See DC Code sect 4-130109 (2001 ed) (requiring Division to provide the least restrictive

placement consistent with a childrsquos needs) The District lacked therapeutic foster homes

foster homes to provide short-term or emergency care and sufficient homes to place babies

who have HIV Id It did not maintain an information system to identify vacancies in foster

and group homes and it allowed children to spend entire days in Division offices while the

social workers attempted to find placements Id

Present CFSA maintains a range of placement options to include short-term

care beds therapeutic placements traditional foster care beds medically fragile foster care

beds and congregate care (Exh C Forbes Decl at 3) The list of foster and congregate care

vacancies is updated daily and the list of contracted foster care vacancies is updated weekly

(Id) No children have stayed overnight in CFSA offices because of a lack of placements

since 2005 (Id) In addition as of December 31 2008 70 of children in care are placed in

family-based settings (Exh A Birdsong Decl at 4) See also July 19 2006 Report at 42

(ldquoThe District has made noteworthy advances in the area of placement of children CFSA

has created a separate placement administration to coordinate all placement requests and to

more expeditiously identify placement resources Treatment foster care is now an option for

children entering placement who need itrdquo)

12

e Case Planning

1991 finding The Court found that the Division ldquofrequently assigns inappropriate

goals to the children in its foster care and consistently fails to prepare written case plans to

enable the children to realize their goalsrdquo 762 F Supp at 973-74 See DC Code sect 6-

2107(b) (1981 ed) (requiring the Division to prepare timely case plans for all children in

foster care) The Court noted that 62 of children with a goal of return home did not have a

written case plan as of December 1989 Id at 973

Present CFSA is required to assure that each child has a case plan and that for

children placed outside the home that the plans are reviewed periodically to determine inter

alia continuing necessity of placement and compliance with the case plan See DC Code

sect 4-130109(d) (e) (2001 ed 2008 Repl) As of December 31 2008 96 of children had

timely case plans prepared (Exh A Birdsong Decl at 7) As of November 2008 95 of

children have appropriate goals in their case plans (Court Monitorrsquos January 26 2009

Update at 5) As reported by the Court Monitor ldquoCFSA has made a philosophical shift to

emphasize the Agencyrsquos responsibility to develop plans with families to ensure the safety

permanency and well-being of their childrenrdquo (July 19 2006 Report at 59)

f Services

1991 finding The Court found that the Division ldquoconsistently failed to provide

services once children are removed from their homes and placed in foster carerdquo 762 F

Supp at 974 See DC Code sect 4-130303 (2001 ed 2008 Repl) (requiring CFSA to

maintain and provide treatment and services to families and children where there has been an

abuse or neglect finding) The finding relied upon the Divisionrsquos policy that children

13

entering care undergo a complete medical evaluation prior to placement and that children in

foster care have a monthly face-to-face contact with a social worker Id As of 1989

services were not provided in 77 of cases with a goal of return home (where the children

had entered foster care through voluntary placement) 44 of children did not have a medical

evaluation since entering care and for 64 of children with a plan of return home there was

no evidence that the children had ever been visited by a social worker Id

Present As of December 31 2008 79 of children entering or re-entering care

received a pre-placement medical screening and 87 of the children entering or re-entering

care received a post-placement medical evaluation within 30 days of placement (Exh A

Birdsong Decl at 8-9) The District has also undertaken efforts to improve these numbers

even further See Section C2 infra at 20-22 With regard to social worker visits 96 of the

children in foster care were visited by a social worker at least once and 87 were visited at

least twice in December 2008 (Birdsong Decl at 10) See also July 19 2006 Report at 80

(ldquoCFSA has greatly improved the way in which it supervises placements of children in foster

care CFSA assigns workers to each child and family foster families know their workers and

the level of contact between families and workers has increased substantially since the end of

the Receivershiprdquo)

g Periodic reviews

1991 finding The Court found that the Division consistently failed to provide

ldquoperiodic judicial or administrative reviews for the purpose of determining the continued

need for and appropriateness of placementrdquo 762 F Supp at 974 See DC Code sect 16-2323

(1981 ed) As of December 1989 only 13 of children in foster care received timely

reviews Id

14

Present As of December 31 2008 CFSA timely completed administrative

reviews for 96 of the 2015 children who require administrative reviews (Exh A Birdsong

Decl at 11)

h Adoption

1991 finding The Court found that the Division ldquohas consistently failed to

expedite the progression of the children in its custody toward permanent placement through

adoptionrdquo 762 F Supp at 975 See DC Code sect 6-2123 (1981 ed) (requiring the Division

to prepare a permanent plan for a child who cannot be returned home within a reasonable

time) As of 1989 66 of children with a goal of adoption had not been legally freed for

adoption Id

Present As of February 4 2007 97 of children with a goal of adoption have

had legal action to free them for adoption2 See DC Code sect 16-2323(c)(2) (2001 ed 2008

Supp) (Exh D Reese Decl at para 7)

i Monitoring foster homes and institutions

1991 finding The Court found that the Division ldquoconsistently failed to monitor

foster homes and institutions in accordance with the requirements of District lawrdquo 762 F

Supp at 979 See DC Code sectsect 3-802 3-805 (1981 ed) (requiring facilities providing foster

care to be licensed and inspected annually) In support of this finding the Court noted that

2 The AIP requires that the legal action be taken within 45 days of the goal changing to adoption however the data provided herein reflects legal action taken regardless of the time Also FACES data shows 83 but a manual count shows that 97 of children with a goal of adoption have had legal action taken to free them for adoption The additional 69 children who had legal action were not properly documented in FACES

15

ldquobetween 1988 and July 1990 the Monitoring Unit failed to monitor any of the foster homes

operated by the Consortium for Child Welfare in which District children were placedrdquo Id

Present In 2001 the District enacted a regulatory framework to govern foster

and group homes See generally 29 DCMR sect 6000 et seq 29 DCMR sect 6200 et seq As

of December 31 2008 current licenses existed for 90 of the 1013 foster homes and 74

of the 121 group homes where children are placed (Exh A Birdsong Decl at 12-13) Prior

to receiving a license foster homes and group homes are inspected foster home licenses are

valid for two years and group home licenses are valid for one year See 29 DCMR sect

6030 29 DCMR sect 6210 In addition to the inspections conducted through the licensing

process CFSA conducts monitoring visits of the homes During 2008 congregate care

monitors performed 311 announced and 267 unannounced monitoring visits at group homes

and independent living locations (Exh E Douglas Decl at 4) In August 2008 foster home

monitors visited 410 children in 227 foster homes (Id at 3)

As shown above the District has remedied the host of statutory violations originally

found by the Court The above analysis is not intended to suggest that there is no room for

improvement As also discussed in the next section the District is making appropriate efforts

where improvements can be made See Section C2 infra at 20-22 The above analysis also

does not include additional ldquosystem infrastructurerdquo findings of the Court in 1991 ndash regarding

case tracking caseloads supervision and training ndash which were not based on a specific statutory

requirement and thus cannot be bases for continuation of the consent decree 762 F Supp at

976-79 The subsequent overhaul in system infrastructure is nevertheless addressed as a separate

basis for terminating the consent decree See Section D infra at 22-27 The point here remains

16

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

1991 ndash has been satisfied The District is now in compliance with statutory requirements in a full

range of areas such as the timeliness of investigations provision of preventative services

placement case planning periodic reviews and monitoring foster homes and institutions In

those few remaining areas where legal compliance can be improved the District is making

effective and appropriate efforts

Court supervision is also no longer necessary in light of the Districtrsquos substantial good

faith compliance with Court Orders for many years In 2001 the District complied with the

court-mandated requirements for the termination of the Receivership After the termination of

the Receivership the District further met the requirements for its probationary period which

ended in 2003 The District subsequently accomplished many of the benchmarks set forth in an

implementation plan and where those benchmarks were not met the District agreed to an

amended plan

Recent events also show the Districtrsquos good faith In the first half of 2008 CFSA had an

historic increase in reports of abuse and neglect and staff turnover In July the plaintiffs filed a

contempt motion which the District argued was unfounded Nevertheless at the urging of the

plaintiffs and the Court Monitor the District retained the Public Catalyst Group (PCG) as an

expert to review the agency and make recommendations In addition the District agreed to a

Stipulated Order with a range of obligations The District met or exceeded those obligations and

it drafted a plan for the subsequent six months based on the recommendations of PCG

In response to the Districtrsquos good faith efforts and success the plaintiffs filed a renewed

contempt motion thereby exemplifying how the plaintiffsrsquo continuation of this case has gone

beyond any proper purpose The renewed contempt motion reveals the plaintiffsrsquo counselrsquos

unwillingness to recognize the significant accomplishments achieved since 1991 as well as their

3

vested interest in perpetuating this lawsuit indefinitely untethered from the resolution of any

statutory violations

Major structural changes are additional circumstances warranting the end of court

supervision CFSA is now a cabinet-level agency with vastly improved budget and staffing It

has established a new investigation process for reports of abuse and neglect With better

supervision and staffing social worker caseloads have plummeted from where they were in

1991 CFSA has an automated case tracking system that is now state-of-the-art The law has

been updated and new regulations on foster homes and institutions have been promulgated

Internal and external monitoring exists apart from court oversight and legal support functions

have also improved In essence the agency has been completely transformed since 1991

A final changed circumstance is the current fiscal constraints arising from the current

economic climate In light of these fiscal constraints the large legal and administrative expenses

incurred by virtue of court supervision constitute an unjustifiable drain on scarce District

resources

For all these reasons this Court should initiate the termination of the consent decree The

District proposes that the Court approve its proposed six month plan with addendum to be

followed by the adoption of specific exit criteria The exit criteria would be narrowly designed

to address state law violations if any that remain at the conclusion of the six-month plan being

considered by the Court Any monitoring of these exit criteria should be extremely brief so that

full control of CFSA is returned to the local government within a year

4

ARGUMENT

I IT IS NO LONGER EQUITABLE FOR THE CONSENT DECREE TO REMAIN IN EFFECT

A partyrsquos request for relief from a consent decree relies on ldquothe courtrsquos equitable powers

and the direction given by the Federal Rules of Civil Procedurerdquo Frew v Hawkins 540 US

431 441 (2004) ldquoIn particular Rule 60(b)(5) allows a party to move for relief if lsquoit is no longer

equitable that the judgment should have prospective applicationrsquordquo Id quoting Fed R Civ P

60(b)(5) The Rule ldquoencompasses the traditional power of a court of equity to modify its decree

in light of changed circumstancesrdquo Frew 540 US at 441 Where consent decrees involve

institutional reform litigation the Supreme Court emphasized that district courts should apply a

ldquoflexible standardrdquo to modify consent decrees when a significant change in circumstances

occurs Id quoting Rufo v Inmates of Suffolk County Jail 502 US 367 393 (1992)

The district court has discretion whether to terminate a consent decree McDonald v

Carnahan 109 F3d 1319 1321 (8th Cir 1997) In making this decision the district court should

determine whether the decreersquos basic purpose of correcting the original violations of law has

been achieved and whether recurring violations of law would be likely once the decree has been

lifted Board of Education v Dowell 498 US 237 247 (1991) (ldquoIn the present case a finding

by the District Court that [the agency] was being operated in compliance with the commands of

the [Constitution] and that it was unlikely the [agency] would return to its former ways would be

a finding that the purposes of the litigaton have been fully achievedrdquo) In weighing the

likelihood of recurring violations the court should consider the local authoritiesrsquo ldquogood faithrdquo

compliance with the decree ldquofor a reasonable period of timerdquo Id at 248-49

5

A Public Policy Favors Local Control Rather Than Court Supervision Over Government Agencies

In its unanimous decision in Frew the Supreme Court held that consent decrees in

institutional reform litigation should be closely limited in scope and duration so that agency

functions are promptly returned to local control A federal district court ldquomust exercise its

equitable powers to ensure that when the objects of the decree have been attained responsibility

for discharging the Statersquos obligations is returned promptly to the State and its officialsrdquo 540

US at 442 (emphasis added)

The Supreme Court elaborated on the important benefits of returning local programs to

local government control First local control is essential to progress and innovation The Court

explained

As public servants the officials of the State must be presumed to have a high degree of competence in deciding how best to discharge their governmental responsibilities A State in the ordinary course depends upon successor officials both appointed and elected to bring new insights and solutions to problems of allocating revenues and resources

Id at 442 accord Dowell 498 US at 248 (ldquoLocal control [over local programs] allows

innovation so that [local programs] can fit local needsrdquo)

The Supreme Court was also concerned by the adverse effect of consent decrees on

separation of powers Consent decrees encroach on local executive and legislative functions

because those decrees bind successor government officials into the indefinite future even to

terms that might never have been entered had the matter been litigated to full conclusion Rufo

502 US at 392 The result is that ldquoif not limited to reasonable and necessary implementations of

federal law remedies outlined in consent decrees may improperly deprive future officials of

their designated legislative and executive powersrdquo Id at 441

6

The Frew Court also disfavored consent decrees because they impair the relationship

between citizens and their elected officials Frew noted the ldquolegitimaterdquo concern that

ldquoenforcement of consent decrees can undermine the accountability of state governmentsrdquo

Id These decrees deprive citizens of a voice through their elected officials in the operation of

their government Conversely through relief from such consent decrees ldquo[l]ocal control over

[local programs] allows citizens to participate in decisionmakingrdquo Dowell 498 US at 248

The Frew decision ultimately ldquostakes out a new positionrdquo in the law to ldquomake it easier for

governmental officials to obtain judicial approval when they seek to modify and terminate an

existing consent decreerdquo Ross Sandler amp David Schoenbrod The Supreme Court Democracy

And Institutional Reform Litigation 49 NYL Sch L Rev 915 919 (2005)

In recent years it is not only the Supreme Court but also the Congress that has

responded to limit enforcement of consent decrees in institutional reform litigation In enacting

the Prison Litigation Reform Act of 1995 18 USC sect 3626(b)(2) the Congress ldquoleft no doubtsrdquo

that it sought to curtail court management of state and local agency functions Taylor v United

States 181 F3d 1017 1027 n1 (9th Cir 1999) (Wardlaw J dissenting) citing eg 141 Cong

Rec S14418 (1995) (statement of Sen Hatch) (ldquoI believe that the courts have gone too far in

micromanaging our Nationrsquos prisonsrdquo) accord Plyler v Moore 100 F3d 365 370 (4th Cir

1996) cert denied 520 US 1277 (1997) (noting ldquoCongressrsquo purpose in enacting the PLRA

[was] to relieve states of the onerous burden of complying with consent decreesrdquo many of which

ldquoreach far beyond the dictates of federal lawrdquo)

Accordingly especially where as here defendants have cured the systemic violations of

law upon which the consent decree was originally predicated important public policy concerns

7

favor the prompt return of local government control rather than the continuation of federal court

supervision

B Defendants Have Corrected the Systemic Violations of the Law Originally Found

by the Court

Consideration of a motion to terminate a consent decree ldquomust begin by determining the

basic purpose of the decreerdquo United States v City of Miami 2 F3d 1497 1505 (11th Cir 1993)

In institutional reform cases a consent decreersquos basic purpose is correcting those systemic

violations of law originally found by the court or stipulated by the parties No other purpose

justifies the continuation of a consent decree in such cases Because in the present case the

District has corrected the systemic violations of the law identified in the Courtrsquos 1991 findings

the consent decreersquos basic purpose has been satisfied

1 A consent decreersquos only justified purpose is to directly address the original violation of law

In light of ldquoconsiderations about allocation of powers within our federal systemrdquo a

consent decree is limited to remedying the substantive law violation As the Supreme Court

explained in Milliken v Bradley 433 US 267 (1977)

Federal-court decrees must directly address and relate to the [] violation [of the law] itself Because of this inherent limitation upon federal judicial authority federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the [applicable law] or does not flow from such a violation

Id at 282 quoted in Dowell 498 US at 247

This limitation on consent decrees ndash that they must be tailored to remedying violations of

the law ndash upholds the separation of powers ldquo[I]t is not the role of courts but that of the political

8

branches to shape the institutions of government in such fashion as to comply with the laws and

the Constitutionrdquo Lewis v Casey 518 US 343 350 (1996) Absent the violation of a legal

right a plaintiff may not ldquoinvoke intervention of the courtsrdquo simply because for example the

plaintiff is ldquobeing subject[ed] to a governmental institution that was not organized or managed

properlyrdquo Id

2 The decreersquos basic purpose of correcting the past systemic violations of

law has been met

As shown below the District has remedied the systemic violations identified in the

Courtrsquos 1991 findings in this case See LaShawn A v Dixon 762 F Supp 959 968-80 (DDC

1991) 1 The proper focus here is on correction of systemic violations of law not whether every

problem has been corrected See RC v Walley 475 F Supp 2d 1118 1144 (MD Ala 2007)

(considering system-wide compliance rather than isolated occurrences)

a Timeliness of abuse and neglect investigations

1991 Finding The Court found that DHSrsquo Child and Family Services Division

(ldquoDivisionrdquo) had ldquofailed to initiate investigations into reports of neglect or abuse within 24

hours and complete investigations within two weeksrdquo 762 F Supp at 970 See DC Code sect

6-2102 (1981 ed) (requiring CFSA to initiate investigations within 24 hours of receiving a 1 While the Court originally found violations of federal and local law subsequent decisions rely upon local law claims only See LaShawn A v Barry 144 F3d 847 852 854 (DC Cir 1998) (noting that ldquo[w]e have before us a consent decree based solely on local lawrdquo and rejecting as inadequate the ldquodistrict courtrsquos 1995 attempt to revive the federal law claimsrdquo) The Court cited federal statutory provisions in its 1991 findings regarding investigations 42 USC sect 5106a preventative services 42 USC sect 5106 placement 42 USC sect 672 case planning services and periodic reviews 42 USC sect 675 and case tracking 42 USC 627 The federal provisions however do not include a private right of action See Suter v Artist M 503 US 347 (1992) Rather the provisions govern grants awarded to states and other federal funding mandates

9

report of neglect) In April 1990 the Division failed to initiate nearly 50 percent of the

reports received within 24 hours Id at 969 The Division ldquoended each month between July

1989 and May 1990 with an average backlog of approximately 1200 reports for which it had

not completed investigationsrdquo Id

Present Based on December 2008 data CFSA initiated or attempted to initiate

70 of investigations within 24 hours of receipt of a report of abuse or neglect and CFSA

initiated or attempted to initiate 90 of investigations within 48 hours (Exh A Birdsong

Decl at 3) As of December 31 2008 only 42 of 405 investigations (about 10) were open

longer than 30 days (Id at 15) See DC Code sectsect 4-130104(b) 4-130106(a) (2001 ed

2008 Repl) (setting a 30-day timeframe for completing investigations)

b Provision of preventative services

1991 finding The Court found ldquothat defendants have consistently failed to

provide [preventative] services or otherwise use lsquoreasonable effortsrsquo to prevent placementrdquo

762 F Supp at 970 See DC Code sectsect 6-2105 6-2124 (1981 ed) (requiring the Division to

provide services to enable a child for whom a report has been made to remain in the home

unless removal is necessary) In support of this finding the Court noted that the Division did

not have drug treatment services or counseling services for parents with substance abuse or

mental health problems and that it did not have housing or job services for parents with

housing or unemployment problems Id

Present As of December 31 2008 CFSA served 2070 children (or 757 families)

where children have remained home following an investigation (Exh A Birdsong Decl at

5) In addition during the first quarter of fiscal year 2009 CFSA referred 413 cases to the

Healthy FamiliesThriving Communities Collaboratives to provide a range of services

10

including short term crisis services case management services and youth aftercare (Exh B

Abney Decl at 3) See also the Court Monitorrsquos July 19 2006 Report at 22-24 (detailing the

significant enhancements in the amount and type of services offered to children and families

since this lawsuit began)

c Placement Voluntary and emergency care

1991 finding The Court found ldquothat the [Division] consistently failed to

comply with the statutory time limits regarding voluntary and emergency carerdquo 762 F

Supp at 971 See DC Code sect 6-2123(a)(2) (1981 ed) (mandating that ldquowithin 90 days of

taking a child into custody [the Division must] return the child to the home or request the

filing of a neglect petition in the Family Division of the Superior Court of the District of

Columbiardquo) In support of its finding the Court noted that as of April 1988 the District did

not have an accurate listing of children in voluntary placements and that one of the named

plaintiffs was in voluntary care for two-and-a-half years Id

Present In December 2008 there were no children in voluntary placements In

addition CFSA does not have any children in ldquoemergencyrdquo care over 90 days without a

petition to the Family Court (Exh A Birdsong Decl at 6) CFSA has a practice of

petitioning cases whenever a child is removed beyond a five-day hold As reported by the

Court Monitor in July 2006 ldquo[t]he District has eliminated the inappropriate use of emergency

care and instituted appropriate child welfare practice of removing children from their homes

only with the sanction of a court orderrdquo (July 19 2006 Report at 40)

11

d Least restrictive placement

1991 finding The Court found that ldquothe [Division] consistently failed to place

children in the least restrictive placements consistent with their needsrdquo 762 F Supp at 972

See DC Code sect 4-130109 (2001 ed) (requiring Division to provide the least restrictive

placement consistent with a childrsquos needs) The District lacked therapeutic foster homes

foster homes to provide short-term or emergency care and sufficient homes to place babies

who have HIV Id It did not maintain an information system to identify vacancies in foster

and group homes and it allowed children to spend entire days in Division offices while the

social workers attempted to find placements Id

Present CFSA maintains a range of placement options to include short-term

care beds therapeutic placements traditional foster care beds medically fragile foster care

beds and congregate care (Exh C Forbes Decl at 3) The list of foster and congregate care

vacancies is updated daily and the list of contracted foster care vacancies is updated weekly

(Id) No children have stayed overnight in CFSA offices because of a lack of placements

since 2005 (Id) In addition as of December 31 2008 70 of children in care are placed in

family-based settings (Exh A Birdsong Decl at 4) See also July 19 2006 Report at 42

(ldquoThe District has made noteworthy advances in the area of placement of children CFSA

has created a separate placement administration to coordinate all placement requests and to

more expeditiously identify placement resources Treatment foster care is now an option for

children entering placement who need itrdquo)

12

e Case Planning

1991 finding The Court found that the Division ldquofrequently assigns inappropriate

goals to the children in its foster care and consistently fails to prepare written case plans to

enable the children to realize their goalsrdquo 762 F Supp at 973-74 See DC Code sect 6-

2107(b) (1981 ed) (requiring the Division to prepare timely case plans for all children in

foster care) The Court noted that 62 of children with a goal of return home did not have a

written case plan as of December 1989 Id at 973

Present CFSA is required to assure that each child has a case plan and that for

children placed outside the home that the plans are reviewed periodically to determine inter

alia continuing necessity of placement and compliance with the case plan See DC Code

sect 4-130109(d) (e) (2001 ed 2008 Repl) As of December 31 2008 96 of children had

timely case plans prepared (Exh A Birdsong Decl at 7) As of November 2008 95 of

children have appropriate goals in their case plans (Court Monitorrsquos January 26 2009

Update at 5) As reported by the Court Monitor ldquoCFSA has made a philosophical shift to

emphasize the Agencyrsquos responsibility to develop plans with families to ensure the safety

permanency and well-being of their childrenrdquo (July 19 2006 Report at 59)

f Services

1991 finding The Court found that the Division ldquoconsistently failed to provide

services once children are removed from their homes and placed in foster carerdquo 762 F

Supp at 974 See DC Code sect 4-130303 (2001 ed 2008 Repl) (requiring CFSA to

maintain and provide treatment and services to families and children where there has been an

abuse or neglect finding) The finding relied upon the Divisionrsquos policy that children

13

entering care undergo a complete medical evaluation prior to placement and that children in

foster care have a monthly face-to-face contact with a social worker Id As of 1989

services were not provided in 77 of cases with a goal of return home (where the children

had entered foster care through voluntary placement) 44 of children did not have a medical

evaluation since entering care and for 64 of children with a plan of return home there was

no evidence that the children had ever been visited by a social worker Id

Present As of December 31 2008 79 of children entering or re-entering care

received a pre-placement medical screening and 87 of the children entering or re-entering

care received a post-placement medical evaluation within 30 days of placement (Exh A

Birdsong Decl at 8-9) The District has also undertaken efforts to improve these numbers

even further See Section C2 infra at 20-22 With regard to social worker visits 96 of the

children in foster care were visited by a social worker at least once and 87 were visited at

least twice in December 2008 (Birdsong Decl at 10) See also July 19 2006 Report at 80

(ldquoCFSA has greatly improved the way in which it supervises placements of children in foster

care CFSA assigns workers to each child and family foster families know their workers and

the level of contact between families and workers has increased substantially since the end of

the Receivershiprdquo)

g Periodic reviews

1991 finding The Court found that the Division consistently failed to provide

ldquoperiodic judicial or administrative reviews for the purpose of determining the continued

need for and appropriateness of placementrdquo 762 F Supp at 974 See DC Code sect 16-2323

(1981 ed) As of December 1989 only 13 of children in foster care received timely

reviews Id

14

Present As of December 31 2008 CFSA timely completed administrative

reviews for 96 of the 2015 children who require administrative reviews (Exh A Birdsong

Decl at 11)

h Adoption

1991 finding The Court found that the Division ldquohas consistently failed to

expedite the progression of the children in its custody toward permanent placement through

adoptionrdquo 762 F Supp at 975 See DC Code sect 6-2123 (1981 ed) (requiring the Division

to prepare a permanent plan for a child who cannot be returned home within a reasonable

time) As of 1989 66 of children with a goal of adoption had not been legally freed for

adoption Id

Present As of February 4 2007 97 of children with a goal of adoption have

had legal action to free them for adoption2 See DC Code sect 16-2323(c)(2) (2001 ed 2008

Supp) (Exh D Reese Decl at para 7)

i Monitoring foster homes and institutions

1991 finding The Court found that the Division ldquoconsistently failed to monitor

foster homes and institutions in accordance with the requirements of District lawrdquo 762 F

Supp at 979 See DC Code sectsect 3-802 3-805 (1981 ed) (requiring facilities providing foster

care to be licensed and inspected annually) In support of this finding the Court noted that

2 The AIP requires that the legal action be taken within 45 days of the goal changing to adoption however the data provided herein reflects legal action taken regardless of the time Also FACES data shows 83 but a manual count shows that 97 of children with a goal of adoption have had legal action taken to free them for adoption The additional 69 children who had legal action were not properly documented in FACES

15

ldquobetween 1988 and July 1990 the Monitoring Unit failed to monitor any of the foster homes

operated by the Consortium for Child Welfare in which District children were placedrdquo Id

Present In 2001 the District enacted a regulatory framework to govern foster

and group homes See generally 29 DCMR sect 6000 et seq 29 DCMR sect 6200 et seq As

of December 31 2008 current licenses existed for 90 of the 1013 foster homes and 74

of the 121 group homes where children are placed (Exh A Birdsong Decl at 12-13) Prior

to receiving a license foster homes and group homes are inspected foster home licenses are

valid for two years and group home licenses are valid for one year See 29 DCMR sect

6030 29 DCMR sect 6210 In addition to the inspections conducted through the licensing

process CFSA conducts monitoring visits of the homes During 2008 congregate care

monitors performed 311 announced and 267 unannounced monitoring visits at group homes

and independent living locations (Exh E Douglas Decl at 4) In August 2008 foster home

monitors visited 410 children in 227 foster homes (Id at 3)

As shown above the District has remedied the host of statutory violations originally

found by the Court The above analysis is not intended to suggest that there is no room for

improvement As also discussed in the next section the District is making appropriate efforts

where improvements can be made See Section C2 infra at 20-22 The above analysis also

does not include additional ldquosystem infrastructurerdquo findings of the Court in 1991 ndash regarding

case tracking caseloads supervision and training ndash which were not based on a specific statutory

requirement and thus cannot be bases for continuation of the consent decree 762 F Supp at

976-79 The subsequent overhaul in system infrastructure is nevertheless addressed as a separate

basis for terminating the consent decree See Section D infra at 22-27 The point here remains

16

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

vested interest in perpetuating this lawsuit indefinitely untethered from the resolution of any

statutory violations

Major structural changes are additional circumstances warranting the end of court

supervision CFSA is now a cabinet-level agency with vastly improved budget and staffing It

has established a new investigation process for reports of abuse and neglect With better

supervision and staffing social worker caseloads have plummeted from where they were in

1991 CFSA has an automated case tracking system that is now state-of-the-art The law has

been updated and new regulations on foster homes and institutions have been promulgated

Internal and external monitoring exists apart from court oversight and legal support functions

have also improved In essence the agency has been completely transformed since 1991

A final changed circumstance is the current fiscal constraints arising from the current

economic climate In light of these fiscal constraints the large legal and administrative expenses

incurred by virtue of court supervision constitute an unjustifiable drain on scarce District

resources

For all these reasons this Court should initiate the termination of the consent decree The

District proposes that the Court approve its proposed six month plan with addendum to be

followed by the adoption of specific exit criteria The exit criteria would be narrowly designed

to address state law violations if any that remain at the conclusion of the six-month plan being

considered by the Court Any monitoring of these exit criteria should be extremely brief so that

full control of CFSA is returned to the local government within a year

4

ARGUMENT

I IT IS NO LONGER EQUITABLE FOR THE CONSENT DECREE TO REMAIN IN EFFECT

A partyrsquos request for relief from a consent decree relies on ldquothe courtrsquos equitable powers

and the direction given by the Federal Rules of Civil Procedurerdquo Frew v Hawkins 540 US

431 441 (2004) ldquoIn particular Rule 60(b)(5) allows a party to move for relief if lsquoit is no longer

equitable that the judgment should have prospective applicationrsquordquo Id quoting Fed R Civ P

60(b)(5) The Rule ldquoencompasses the traditional power of a court of equity to modify its decree

in light of changed circumstancesrdquo Frew 540 US at 441 Where consent decrees involve

institutional reform litigation the Supreme Court emphasized that district courts should apply a

ldquoflexible standardrdquo to modify consent decrees when a significant change in circumstances

occurs Id quoting Rufo v Inmates of Suffolk County Jail 502 US 367 393 (1992)

The district court has discretion whether to terminate a consent decree McDonald v

Carnahan 109 F3d 1319 1321 (8th Cir 1997) In making this decision the district court should

determine whether the decreersquos basic purpose of correcting the original violations of law has

been achieved and whether recurring violations of law would be likely once the decree has been

lifted Board of Education v Dowell 498 US 237 247 (1991) (ldquoIn the present case a finding

by the District Court that [the agency] was being operated in compliance with the commands of

the [Constitution] and that it was unlikely the [agency] would return to its former ways would be

a finding that the purposes of the litigaton have been fully achievedrdquo) In weighing the

likelihood of recurring violations the court should consider the local authoritiesrsquo ldquogood faithrdquo

compliance with the decree ldquofor a reasonable period of timerdquo Id at 248-49

5

A Public Policy Favors Local Control Rather Than Court Supervision Over Government Agencies

In its unanimous decision in Frew the Supreme Court held that consent decrees in

institutional reform litigation should be closely limited in scope and duration so that agency

functions are promptly returned to local control A federal district court ldquomust exercise its

equitable powers to ensure that when the objects of the decree have been attained responsibility

for discharging the Statersquos obligations is returned promptly to the State and its officialsrdquo 540

US at 442 (emphasis added)

The Supreme Court elaborated on the important benefits of returning local programs to

local government control First local control is essential to progress and innovation The Court

explained

As public servants the officials of the State must be presumed to have a high degree of competence in deciding how best to discharge their governmental responsibilities A State in the ordinary course depends upon successor officials both appointed and elected to bring new insights and solutions to problems of allocating revenues and resources

Id at 442 accord Dowell 498 US at 248 (ldquoLocal control [over local programs] allows

innovation so that [local programs] can fit local needsrdquo)

The Supreme Court was also concerned by the adverse effect of consent decrees on

separation of powers Consent decrees encroach on local executive and legislative functions

because those decrees bind successor government officials into the indefinite future even to

terms that might never have been entered had the matter been litigated to full conclusion Rufo

502 US at 392 The result is that ldquoif not limited to reasonable and necessary implementations of

federal law remedies outlined in consent decrees may improperly deprive future officials of

their designated legislative and executive powersrdquo Id at 441

6

The Frew Court also disfavored consent decrees because they impair the relationship

between citizens and their elected officials Frew noted the ldquolegitimaterdquo concern that

ldquoenforcement of consent decrees can undermine the accountability of state governmentsrdquo

Id These decrees deprive citizens of a voice through their elected officials in the operation of

their government Conversely through relief from such consent decrees ldquo[l]ocal control over

[local programs] allows citizens to participate in decisionmakingrdquo Dowell 498 US at 248

The Frew decision ultimately ldquostakes out a new positionrdquo in the law to ldquomake it easier for

governmental officials to obtain judicial approval when they seek to modify and terminate an

existing consent decreerdquo Ross Sandler amp David Schoenbrod The Supreme Court Democracy

And Institutional Reform Litigation 49 NYL Sch L Rev 915 919 (2005)

In recent years it is not only the Supreme Court but also the Congress that has

responded to limit enforcement of consent decrees in institutional reform litigation In enacting

the Prison Litigation Reform Act of 1995 18 USC sect 3626(b)(2) the Congress ldquoleft no doubtsrdquo

that it sought to curtail court management of state and local agency functions Taylor v United

States 181 F3d 1017 1027 n1 (9th Cir 1999) (Wardlaw J dissenting) citing eg 141 Cong

Rec S14418 (1995) (statement of Sen Hatch) (ldquoI believe that the courts have gone too far in

micromanaging our Nationrsquos prisonsrdquo) accord Plyler v Moore 100 F3d 365 370 (4th Cir

1996) cert denied 520 US 1277 (1997) (noting ldquoCongressrsquo purpose in enacting the PLRA

[was] to relieve states of the onerous burden of complying with consent decreesrdquo many of which

ldquoreach far beyond the dictates of federal lawrdquo)

Accordingly especially where as here defendants have cured the systemic violations of

law upon which the consent decree was originally predicated important public policy concerns

7

favor the prompt return of local government control rather than the continuation of federal court

supervision

B Defendants Have Corrected the Systemic Violations of the Law Originally Found

by the Court

Consideration of a motion to terminate a consent decree ldquomust begin by determining the

basic purpose of the decreerdquo United States v City of Miami 2 F3d 1497 1505 (11th Cir 1993)

In institutional reform cases a consent decreersquos basic purpose is correcting those systemic

violations of law originally found by the court or stipulated by the parties No other purpose

justifies the continuation of a consent decree in such cases Because in the present case the

District has corrected the systemic violations of the law identified in the Courtrsquos 1991 findings

the consent decreersquos basic purpose has been satisfied

1 A consent decreersquos only justified purpose is to directly address the original violation of law

In light of ldquoconsiderations about allocation of powers within our federal systemrdquo a

consent decree is limited to remedying the substantive law violation As the Supreme Court

explained in Milliken v Bradley 433 US 267 (1977)

Federal-court decrees must directly address and relate to the [] violation [of the law] itself Because of this inherent limitation upon federal judicial authority federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the [applicable law] or does not flow from such a violation

Id at 282 quoted in Dowell 498 US at 247

This limitation on consent decrees ndash that they must be tailored to remedying violations of

the law ndash upholds the separation of powers ldquo[I]t is not the role of courts but that of the political

8

branches to shape the institutions of government in such fashion as to comply with the laws and

the Constitutionrdquo Lewis v Casey 518 US 343 350 (1996) Absent the violation of a legal

right a plaintiff may not ldquoinvoke intervention of the courtsrdquo simply because for example the

plaintiff is ldquobeing subject[ed] to a governmental institution that was not organized or managed

properlyrdquo Id

2 The decreersquos basic purpose of correcting the past systemic violations of

law has been met

As shown below the District has remedied the systemic violations identified in the

Courtrsquos 1991 findings in this case See LaShawn A v Dixon 762 F Supp 959 968-80 (DDC

1991) 1 The proper focus here is on correction of systemic violations of law not whether every

problem has been corrected See RC v Walley 475 F Supp 2d 1118 1144 (MD Ala 2007)

(considering system-wide compliance rather than isolated occurrences)

a Timeliness of abuse and neglect investigations

1991 Finding The Court found that DHSrsquo Child and Family Services Division

(ldquoDivisionrdquo) had ldquofailed to initiate investigations into reports of neglect or abuse within 24

hours and complete investigations within two weeksrdquo 762 F Supp at 970 See DC Code sect

6-2102 (1981 ed) (requiring CFSA to initiate investigations within 24 hours of receiving a 1 While the Court originally found violations of federal and local law subsequent decisions rely upon local law claims only See LaShawn A v Barry 144 F3d 847 852 854 (DC Cir 1998) (noting that ldquo[w]e have before us a consent decree based solely on local lawrdquo and rejecting as inadequate the ldquodistrict courtrsquos 1995 attempt to revive the federal law claimsrdquo) The Court cited federal statutory provisions in its 1991 findings regarding investigations 42 USC sect 5106a preventative services 42 USC sect 5106 placement 42 USC sect 672 case planning services and periodic reviews 42 USC sect 675 and case tracking 42 USC 627 The federal provisions however do not include a private right of action See Suter v Artist M 503 US 347 (1992) Rather the provisions govern grants awarded to states and other federal funding mandates

9

report of neglect) In April 1990 the Division failed to initiate nearly 50 percent of the

reports received within 24 hours Id at 969 The Division ldquoended each month between July

1989 and May 1990 with an average backlog of approximately 1200 reports for which it had

not completed investigationsrdquo Id

Present Based on December 2008 data CFSA initiated or attempted to initiate

70 of investigations within 24 hours of receipt of a report of abuse or neglect and CFSA

initiated or attempted to initiate 90 of investigations within 48 hours (Exh A Birdsong

Decl at 3) As of December 31 2008 only 42 of 405 investigations (about 10) were open

longer than 30 days (Id at 15) See DC Code sectsect 4-130104(b) 4-130106(a) (2001 ed

2008 Repl) (setting a 30-day timeframe for completing investigations)

b Provision of preventative services

1991 finding The Court found ldquothat defendants have consistently failed to

provide [preventative] services or otherwise use lsquoreasonable effortsrsquo to prevent placementrdquo

762 F Supp at 970 See DC Code sectsect 6-2105 6-2124 (1981 ed) (requiring the Division to

provide services to enable a child for whom a report has been made to remain in the home

unless removal is necessary) In support of this finding the Court noted that the Division did

not have drug treatment services or counseling services for parents with substance abuse or

mental health problems and that it did not have housing or job services for parents with

housing or unemployment problems Id

Present As of December 31 2008 CFSA served 2070 children (or 757 families)

where children have remained home following an investigation (Exh A Birdsong Decl at

5) In addition during the first quarter of fiscal year 2009 CFSA referred 413 cases to the

Healthy FamiliesThriving Communities Collaboratives to provide a range of services

10

including short term crisis services case management services and youth aftercare (Exh B

Abney Decl at 3) See also the Court Monitorrsquos July 19 2006 Report at 22-24 (detailing the

significant enhancements in the amount and type of services offered to children and families

since this lawsuit began)

c Placement Voluntary and emergency care

1991 finding The Court found ldquothat the [Division] consistently failed to

comply with the statutory time limits regarding voluntary and emergency carerdquo 762 F

Supp at 971 See DC Code sect 6-2123(a)(2) (1981 ed) (mandating that ldquowithin 90 days of

taking a child into custody [the Division must] return the child to the home or request the

filing of a neglect petition in the Family Division of the Superior Court of the District of

Columbiardquo) In support of its finding the Court noted that as of April 1988 the District did

not have an accurate listing of children in voluntary placements and that one of the named

plaintiffs was in voluntary care for two-and-a-half years Id

Present In December 2008 there were no children in voluntary placements In

addition CFSA does not have any children in ldquoemergencyrdquo care over 90 days without a

petition to the Family Court (Exh A Birdsong Decl at 6) CFSA has a practice of

petitioning cases whenever a child is removed beyond a five-day hold As reported by the

Court Monitor in July 2006 ldquo[t]he District has eliminated the inappropriate use of emergency

care and instituted appropriate child welfare practice of removing children from their homes

only with the sanction of a court orderrdquo (July 19 2006 Report at 40)

11

d Least restrictive placement

1991 finding The Court found that ldquothe [Division] consistently failed to place

children in the least restrictive placements consistent with their needsrdquo 762 F Supp at 972

See DC Code sect 4-130109 (2001 ed) (requiring Division to provide the least restrictive

placement consistent with a childrsquos needs) The District lacked therapeutic foster homes

foster homes to provide short-term or emergency care and sufficient homes to place babies

who have HIV Id It did not maintain an information system to identify vacancies in foster

and group homes and it allowed children to spend entire days in Division offices while the

social workers attempted to find placements Id

Present CFSA maintains a range of placement options to include short-term

care beds therapeutic placements traditional foster care beds medically fragile foster care

beds and congregate care (Exh C Forbes Decl at 3) The list of foster and congregate care

vacancies is updated daily and the list of contracted foster care vacancies is updated weekly

(Id) No children have stayed overnight in CFSA offices because of a lack of placements

since 2005 (Id) In addition as of December 31 2008 70 of children in care are placed in

family-based settings (Exh A Birdsong Decl at 4) See also July 19 2006 Report at 42

(ldquoThe District has made noteworthy advances in the area of placement of children CFSA

has created a separate placement administration to coordinate all placement requests and to

more expeditiously identify placement resources Treatment foster care is now an option for

children entering placement who need itrdquo)

12

e Case Planning

1991 finding The Court found that the Division ldquofrequently assigns inappropriate

goals to the children in its foster care and consistently fails to prepare written case plans to

enable the children to realize their goalsrdquo 762 F Supp at 973-74 See DC Code sect 6-

2107(b) (1981 ed) (requiring the Division to prepare timely case plans for all children in

foster care) The Court noted that 62 of children with a goal of return home did not have a

written case plan as of December 1989 Id at 973

Present CFSA is required to assure that each child has a case plan and that for

children placed outside the home that the plans are reviewed periodically to determine inter

alia continuing necessity of placement and compliance with the case plan See DC Code

sect 4-130109(d) (e) (2001 ed 2008 Repl) As of December 31 2008 96 of children had

timely case plans prepared (Exh A Birdsong Decl at 7) As of November 2008 95 of

children have appropriate goals in their case plans (Court Monitorrsquos January 26 2009

Update at 5) As reported by the Court Monitor ldquoCFSA has made a philosophical shift to

emphasize the Agencyrsquos responsibility to develop plans with families to ensure the safety

permanency and well-being of their childrenrdquo (July 19 2006 Report at 59)

f Services

1991 finding The Court found that the Division ldquoconsistently failed to provide

services once children are removed from their homes and placed in foster carerdquo 762 F

Supp at 974 See DC Code sect 4-130303 (2001 ed 2008 Repl) (requiring CFSA to

maintain and provide treatment and services to families and children where there has been an

abuse or neglect finding) The finding relied upon the Divisionrsquos policy that children

13

entering care undergo a complete medical evaluation prior to placement and that children in

foster care have a monthly face-to-face contact with a social worker Id As of 1989

services were not provided in 77 of cases with a goal of return home (where the children

had entered foster care through voluntary placement) 44 of children did not have a medical

evaluation since entering care and for 64 of children with a plan of return home there was

no evidence that the children had ever been visited by a social worker Id

Present As of December 31 2008 79 of children entering or re-entering care

received a pre-placement medical screening and 87 of the children entering or re-entering

care received a post-placement medical evaluation within 30 days of placement (Exh A

Birdsong Decl at 8-9) The District has also undertaken efforts to improve these numbers

even further See Section C2 infra at 20-22 With regard to social worker visits 96 of the

children in foster care were visited by a social worker at least once and 87 were visited at

least twice in December 2008 (Birdsong Decl at 10) See also July 19 2006 Report at 80

(ldquoCFSA has greatly improved the way in which it supervises placements of children in foster

care CFSA assigns workers to each child and family foster families know their workers and

the level of contact between families and workers has increased substantially since the end of

the Receivershiprdquo)

g Periodic reviews

1991 finding The Court found that the Division consistently failed to provide

ldquoperiodic judicial or administrative reviews for the purpose of determining the continued

need for and appropriateness of placementrdquo 762 F Supp at 974 See DC Code sect 16-2323

(1981 ed) As of December 1989 only 13 of children in foster care received timely

reviews Id

14

Present As of December 31 2008 CFSA timely completed administrative

reviews for 96 of the 2015 children who require administrative reviews (Exh A Birdsong

Decl at 11)

h Adoption

1991 finding The Court found that the Division ldquohas consistently failed to

expedite the progression of the children in its custody toward permanent placement through

adoptionrdquo 762 F Supp at 975 See DC Code sect 6-2123 (1981 ed) (requiring the Division

to prepare a permanent plan for a child who cannot be returned home within a reasonable

time) As of 1989 66 of children with a goal of adoption had not been legally freed for

adoption Id

Present As of February 4 2007 97 of children with a goal of adoption have

had legal action to free them for adoption2 See DC Code sect 16-2323(c)(2) (2001 ed 2008

Supp) (Exh D Reese Decl at para 7)

i Monitoring foster homes and institutions

1991 finding The Court found that the Division ldquoconsistently failed to monitor

foster homes and institutions in accordance with the requirements of District lawrdquo 762 F

Supp at 979 See DC Code sectsect 3-802 3-805 (1981 ed) (requiring facilities providing foster

care to be licensed and inspected annually) In support of this finding the Court noted that

2 The AIP requires that the legal action be taken within 45 days of the goal changing to adoption however the data provided herein reflects legal action taken regardless of the time Also FACES data shows 83 but a manual count shows that 97 of children with a goal of adoption have had legal action taken to free them for adoption The additional 69 children who had legal action were not properly documented in FACES

15

ldquobetween 1988 and July 1990 the Monitoring Unit failed to monitor any of the foster homes

operated by the Consortium for Child Welfare in which District children were placedrdquo Id

Present In 2001 the District enacted a regulatory framework to govern foster

and group homes See generally 29 DCMR sect 6000 et seq 29 DCMR sect 6200 et seq As

of December 31 2008 current licenses existed for 90 of the 1013 foster homes and 74

of the 121 group homes where children are placed (Exh A Birdsong Decl at 12-13) Prior

to receiving a license foster homes and group homes are inspected foster home licenses are

valid for two years and group home licenses are valid for one year See 29 DCMR sect

6030 29 DCMR sect 6210 In addition to the inspections conducted through the licensing

process CFSA conducts monitoring visits of the homes During 2008 congregate care

monitors performed 311 announced and 267 unannounced monitoring visits at group homes

and independent living locations (Exh E Douglas Decl at 4) In August 2008 foster home

monitors visited 410 children in 227 foster homes (Id at 3)

As shown above the District has remedied the host of statutory violations originally

found by the Court The above analysis is not intended to suggest that there is no room for

improvement As also discussed in the next section the District is making appropriate efforts

where improvements can be made See Section C2 infra at 20-22 The above analysis also

does not include additional ldquosystem infrastructurerdquo findings of the Court in 1991 ndash regarding

case tracking caseloads supervision and training ndash which were not based on a specific statutory

requirement and thus cannot be bases for continuation of the consent decree 762 F Supp at

976-79 The subsequent overhaul in system infrastructure is nevertheless addressed as a separate

basis for terminating the consent decree See Section D infra at 22-27 The point here remains

16

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

ARGUMENT

I IT IS NO LONGER EQUITABLE FOR THE CONSENT DECREE TO REMAIN IN EFFECT

A partyrsquos request for relief from a consent decree relies on ldquothe courtrsquos equitable powers

and the direction given by the Federal Rules of Civil Procedurerdquo Frew v Hawkins 540 US

431 441 (2004) ldquoIn particular Rule 60(b)(5) allows a party to move for relief if lsquoit is no longer

equitable that the judgment should have prospective applicationrsquordquo Id quoting Fed R Civ P

60(b)(5) The Rule ldquoencompasses the traditional power of a court of equity to modify its decree

in light of changed circumstancesrdquo Frew 540 US at 441 Where consent decrees involve

institutional reform litigation the Supreme Court emphasized that district courts should apply a

ldquoflexible standardrdquo to modify consent decrees when a significant change in circumstances

occurs Id quoting Rufo v Inmates of Suffolk County Jail 502 US 367 393 (1992)

The district court has discretion whether to terminate a consent decree McDonald v

Carnahan 109 F3d 1319 1321 (8th Cir 1997) In making this decision the district court should

determine whether the decreersquos basic purpose of correcting the original violations of law has

been achieved and whether recurring violations of law would be likely once the decree has been

lifted Board of Education v Dowell 498 US 237 247 (1991) (ldquoIn the present case a finding

by the District Court that [the agency] was being operated in compliance with the commands of

the [Constitution] and that it was unlikely the [agency] would return to its former ways would be

a finding that the purposes of the litigaton have been fully achievedrdquo) In weighing the

likelihood of recurring violations the court should consider the local authoritiesrsquo ldquogood faithrdquo

compliance with the decree ldquofor a reasonable period of timerdquo Id at 248-49

5

A Public Policy Favors Local Control Rather Than Court Supervision Over Government Agencies

In its unanimous decision in Frew the Supreme Court held that consent decrees in

institutional reform litigation should be closely limited in scope and duration so that agency

functions are promptly returned to local control A federal district court ldquomust exercise its

equitable powers to ensure that when the objects of the decree have been attained responsibility

for discharging the Statersquos obligations is returned promptly to the State and its officialsrdquo 540

US at 442 (emphasis added)

The Supreme Court elaborated on the important benefits of returning local programs to

local government control First local control is essential to progress and innovation The Court

explained

As public servants the officials of the State must be presumed to have a high degree of competence in deciding how best to discharge their governmental responsibilities A State in the ordinary course depends upon successor officials both appointed and elected to bring new insights and solutions to problems of allocating revenues and resources

Id at 442 accord Dowell 498 US at 248 (ldquoLocal control [over local programs] allows

innovation so that [local programs] can fit local needsrdquo)

The Supreme Court was also concerned by the adverse effect of consent decrees on

separation of powers Consent decrees encroach on local executive and legislative functions

because those decrees bind successor government officials into the indefinite future even to

terms that might never have been entered had the matter been litigated to full conclusion Rufo

502 US at 392 The result is that ldquoif not limited to reasonable and necessary implementations of

federal law remedies outlined in consent decrees may improperly deprive future officials of

their designated legislative and executive powersrdquo Id at 441

6

The Frew Court also disfavored consent decrees because they impair the relationship

between citizens and their elected officials Frew noted the ldquolegitimaterdquo concern that

ldquoenforcement of consent decrees can undermine the accountability of state governmentsrdquo

Id These decrees deprive citizens of a voice through their elected officials in the operation of

their government Conversely through relief from such consent decrees ldquo[l]ocal control over

[local programs] allows citizens to participate in decisionmakingrdquo Dowell 498 US at 248

The Frew decision ultimately ldquostakes out a new positionrdquo in the law to ldquomake it easier for

governmental officials to obtain judicial approval when they seek to modify and terminate an

existing consent decreerdquo Ross Sandler amp David Schoenbrod The Supreme Court Democracy

And Institutional Reform Litigation 49 NYL Sch L Rev 915 919 (2005)

In recent years it is not only the Supreme Court but also the Congress that has

responded to limit enforcement of consent decrees in institutional reform litigation In enacting

the Prison Litigation Reform Act of 1995 18 USC sect 3626(b)(2) the Congress ldquoleft no doubtsrdquo

that it sought to curtail court management of state and local agency functions Taylor v United

States 181 F3d 1017 1027 n1 (9th Cir 1999) (Wardlaw J dissenting) citing eg 141 Cong

Rec S14418 (1995) (statement of Sen Hatch) (ldquoI believe that the courts have gone too far in

micromanaging our Nationrsquos prisonsrdquo) accord Plyler v Moore 100 F3d 365 370 (4th Cir

1996) cert denied 520 US 1277 (1997) (noting ldquoCongressrsquo purpose in enacting the PLRA

[was] to relieve states of the onerous burden of complying with consent decreesrdquo many of which

ldquoreach far beyond the dictates of federal lawrdquo)

Accordingly especially where as here defendants have cured the systemic violations of

law upon which the consent decree was originally predicated important public policy concerns

7

favor the prompt return of local government control rather than the continuation of federal court

supervision

B Defendants Have Corrected the Systemic Violations of the Law Originally Found

by the Court

Consideration of a motion to terminate a consent decree ldquomust begin by determining the

basic purpose of the decreerdquo United States v City of Miami 2 F3d 1497 1505 (11th Cir 1993)

In institutional reform cases a consent decreersquos basic purpose is correcting those systemic

violations of law originally found by the court or stipulated by the parties No other purpose

justifies the continuation of a consent decree in such cases Because in the present case the

District has corrected the systemic violations of the law identified in the Courtrsquos 1991 findings

the consent decreersquos basic purpose has been satisfied

1 A consent decreersquos only justified purpose is to directly address the original violation of law

In light of ldquoconsiderations about allocation of powers within our federal systemrdquo a

consent decree is limited to remedying the substantive law violation As the Supreme Court

explained in Milliken v Bradley 433 US 267 (1977)

Federal-court decrees must directly address and relate to the [] violation [of the law] itself Because of this inherent limitation upon federal judicial authority federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the [applicable law] or does not flow from such a violation

Id at 282 quoted in Dowell 498 US at 247

This limitation on consent decrees ndash that they must be tailored to remedying violations of

the law ndash upholds the separation of powers ldquo[I]t is not the role of courts but that of the political

8

branches to shape the institutions of government in such fashion as to comply with the laws and

the Constitutionrdquo Lewis v Casey 518 US 343 350 (1996) Absent the violation of a legal

right a plaintiff may not ldquoinvoke intervention of the courtsrdquo simply because for example the

plaintiff is ldquobeing subject[ed] to a governmental institution that was not organized or managed

properlyrdquo Id

2 The decreersquos basic purpose of correcting the past systemic violations of

law has been met

As shown below the District has remedied the systemic violations identified in the

Courtrsquos 1991 findings in this case See LaShawn A v Dixon 762 F Supp 959 968-80 (DDC

1991) 1 The proper focus here is on correction of systemic violations of law not whether every

problem has been corrected See RC v Walley 475 F Supp 2d 1118 1144 (MD Ala 2007)

(considering system-wide compliance rather than isolated occurrences)

a Timeliness of abuse and neglect investigations

1991 Finding The Court found that DHSrsquo Child and Family Services Division

(ldquoDivisionrdquo) had ldquofailed to initiate investigations into reports of neglect or abuse within 24

hours and complete investigations within two weeksrdquo 762 F Supp at 970 See DC Code sect

6-2102 (1981 ed) (requiring CFSA to initiate investigations within 24 hours of receiving a 1 While the Court originally found violations of federal and local law subsequent decisions rely upon local law claims only See LaShawn A v Barry 144 F3d 847 852 854 (DC Cir 1998) (noting that ldquo[w]e have before us a consent decree based solely on local lawrdquo and rejecting as inadequate the ldquodistrict courtrsquos 1995 attempt to revive the federal law claimsrdquo) The Court cited federal statutory provisions in its 1991 findings regarding investigations 42 USC sect 5106a preventative services 42 USC sect 5106 placement 42 USC sect 672 case planning services and periodic reviews 42 USC sect 675 and case tracking 42 USC 627 The federal provisions however do not include a private right of action See Suter v Artist M 503 US 347 (1992) Rather the provisions govern grants awarded to states and other federal funding mandates

9

report of neglect) In April 1990 the Division failed to initiate nearly 50 percent of the

reports received within 24 hours Id at 969 The Division ldquoended each month between July

1989 and May 1990 with an average backlog of approximately 1200 reports for which it had

not completed investigationsrdquo Id

Present Based on December 2008 data CFSA initiated or attempted to initiate

70 of investigations within 24 hours of receipt of a report of abuse or neglect and CFSA

initiated or attempted to initiate 90 of investigations within 48 hours (Exh A Birdsong

Decl at 3) As of December 31 2008 only 42 of 405 investigations (about 10) were open

longer than 30 days (Id at 15) See DC Code sectsect 4-130104(b) 4-130106(a) (2001 ed

2008 Repl) (setting a 30-day timeframe for completing investigations)

b Provision of preventative services

1991 finding The Court found ldquothat defendants have consistently failed to

provide [preventative] services or otherwise use lsquoreasonable effortsrsquo to prevent placementrdquo

762 F Supp at 970 See DC Code sectsect 6-2105 6-2124 (1981 ed) (requiring the Division to

provide services to enable a child for whom a report has been made to remain in the home

unless removal is necessary) In support of this finding the Court noted that the Division did

not have drug treatment services or counseling services for parents with substance abuse or

mental health problems and that it did not have housing or job services for parents with

housing or unemployment problems Id

Present As of December 31 2008 CFSA served 2070 children (or 757 families)

where children have remained home following an investigation (Exh A Birdsong Decl at

5) In addition during the first quarter of fiscal year 2009 CFSA referred 413 cases to the

Healthy FamiliesThriving Communities Collaboratives to provide a range of services

10

including short term crisis services case management services and youth aftercare (Exh B

Abney Decl at 3) See also the Court Monitorrsquos July 19 2006 Report at 22-24 (detailing the

significant enhancements in the amount and type of services offered to children and families

since this lawsuit began)

c Placement Voluntary and emergency care

1991 finding The Court found ldquothat the [Division] consistently failed to

comply with the statutory time limits regarding voluntary and emergency carerdquo 762 F

Supp at 971 See DC Code sect 6-2123(a)(2) (1981 ed) (mandating that ldquowithin 90 days of

taking a child into custody [the Division must] return the child to the home or request the

filing of a neglect petition in the Family Division of the Superior Court of the District of

Columbiardquo) In support of its finding the Court noted that as of April 1988 the District did

not have an accurate listing of children in voluntary placements and that one of the named

plaintiffs was in voluntary care for two-and-a-half years Id

Present In December 2008 there were no children in voluntary placements In

addition CFSA does not have any children in ldquoemergencyrdquo care over 90 days without a

petition to the Family Court (Exh A Birdsong Decl at 6) CFSA has a practice of

petitioning cases whenever a child is removed beyond a five-day hold As reported by the

Court Monitor in July 2006 ldquo[t]he District has eliminated the inappropriate use of emergency

care and instituted appropriate child welfare practice of removing children from their homes

only with the sanction of a court orderrdquo (July 19 2006 Report at 40)

11

d Least restrictive placement

1991 finding The Court found that ldquothe [Division] consistently failed to place

children in the least restrictive placements consistent with their needsrdquo 762 F Supp at 972

See DC Code sect 4-130109 (2001 ed) (requiring Division to provide the least restrictive

placement consistent with a childrsquos needs) The District lacked therapeutic foster homes

foster homes to provide short-term or emergency care and sufficient homes to place babies

who have HIV Id It did not maintain an information system to identify vacancies in foster

and group homes and it allowed children to spend entire days in Division offices while the

social workers attempted to find placements Id

Present CFSA maintains a range of placement options to include short-term

care beds therapeutic placements traditional foster care beds medically fragile foster care

beds and congregate care (Exh C Forbes Decl at 3) The list of foster and congregate care

vacancies is updated daily and the list of contracted foster care vacancies is updated weekly

(Id) No children have stayed overnight in CFSA offices because of a lack of placements

since 2005 (Id) In addition as of December 31 2008 70 of children in care are placed in

family-based settings (Exh A Birdsong Decl at 4) See also July 19 2006 Report at 42

(ldquoThe District has made noteworthy advances in the area of placement of children CFSA

has created a separate placement administration to coordinate all placement requests and to

more expeditiously identify placement resources Treatment foster care is now an option for

children entering placement who need itrdquo)

12

e Case Planning

1991 finding The Court found that the Division ldquofrequently assigns inappropriate

goals to the children in its foster care and consistently fails to prepare written case plans to

enable the children to realize their goalsrdquo 762 F Supp at 973-74 See DC Code sect 6-

2107(b) (1981 ed) (requiring the Division to prepare timely case plans for all children in

foster care) The Court noted that 62 of children with a goal of return home did not have a

written case plan as of December 1989 Id at 973

Present CFSA is required to assure that each child has a case plan and that for

children placed outside the home that the plans are reviewed periodically to determine inter

alia continuing necessity of placement and compliance with the case plan See DC Code

sect 4-130109(d) (e) (2001 ed 2008 Repl) As of December 31 2008 96 of children had

timely case plans prepared (Exh A Birdsong Decl at 7) As of November 2008 95 of

children have appropriate goals in their case plans (Court Monitorrsquos January 26 2009

Update at 5) As reported by the Court Monitor ldquoCFSA has made a philosophical shift to

emphasize the Agencyrsquos responsibility to develop plans with families to ensure the safety

permanency and well-being of their childrenrdquo (July 19 2006 Report at 59)

f Services

1991 finding The Court found that the Division ldquoconsistently failed to provide

services once children are removed from their homes and placed in foster carerdquo 762 F

Supp at 974 See DC Code sect 4-130303 (2001 ed 2008 Repl) (requiring CFSA to

maintain and provide treatment and services to families and children where there has been an

abuse or neglect finding) The finding relied upon the Divisionrsquos policy that children

13

entering care undergo a complete medical evaluation prior to placement and that children in

foster care have a monthly face-to-face contact with a social worker Id As of 1989

services were not provided in 77 of cases with a goal of return home (where the children

had entered foster care through voluntary placement) 44 of children did not have a medical

evaluation since entering care and for 64 of children with a plan of return home there was

no evidence that the children had ever been visited by a social worker Id

Present As of December 31 2008 79 of children entering or re-entering care

received a pre-placement medical screening and 87 of the children entering or re-entering

care received a post-placement medical evaluation within 30 days of placement (Exh A

Birdsong Decl at 8-9) The District has also undertaken efforts to improve these numbers

even further See Section C2 infra at 20-22 With regard to social worker visits 96 of the

children in foster care were visited by a social worker at least once and 87 were visited at

least twice in December 2008 (Birdsong Decl at 10) See also July 19 2006 Report at 80

(ldquoCFSA has greatly improved the way in which it supervises placements of children in foster

care CFSA assigns workers to each child and family foster families know their workers and

the level of contact between families and workers has increased substantially since the end of

the Receivershiprdquo)

g Periodic reviews

1991 finding The Court found that the Division consistently failed to provide

ldquoperiodic judicial or administrative reviews for the purpose of determining the continued

need for and appropriateness of placementrdquo 762 F Supp at 974 See DC Code sect 16-2323

(1981 ed) As of December 1989 only 13 of children in foster care received timely

reviews Id

14

Present As of December 31 2008 CFSA timely completed administrative

reviews for 96 of the 2015 children who require administrative reviews (Exh A Birdsong

Decl at 11)

h Adoption

1991 finding The Court found that the Division ldquohas consistently failed to

expedite the progression of the children in its custody toward permanent placement through

adoptionrdquo 762 F Supp at 975 See DC Code sect 6-2123 (1981 ed) (requiring the Division

to prepare a permanent plan for a child who cannot be returned home within a reasonable

time) As of 1989 66 of children with a goal of adoption had not been legally freed for

adoption Id

Present As of February 4 2007 97 of children with a goal of adoption have

had legal action to free them for adoption2 See DC Code sect 16-2323(c)(2) (2001 ed 2008

Supp) (Exh D Reese Decl at para 7)

i Monitoring foster homes and institutions

1991 finding The Court found that the Division ldquoconsistently failed to monitor

foster homes and institutions in accordance with the requirements of District lawrdquo 762 F

Supp at 979 See DC Code sectsect 3-802 3-805 (1981 ed) (requiring facilities providing foster

care to be licensed and inspected annually) In support of this finding the Court noted that

2 The AIP requires that the legal action be taken within 45 days of the goal changing to adoption however the data provided herein reflects legal action taken regardless of the time Also FACES data shows 83 but a manual count shows that 97 of children with a goal of adoption have had legal action taken to free them for adoption The additional 69 children who had legal action were not properly documented in FACES

15

ldquobetween 1988 and July 1990 the Monitoring Unit failed to monitor any of the foster homes

operated by the Consortium for Child Welfare in which District children were placedrdquo Id

Present In 2001 the District enacted a regulatory framework to govern foster

and group homes See generally 29 DCMR sect 6000 et seq 29 DCMR sect 6200 et seq As

of December 31 2008 current licenses existed for 90 of the 1013 foster homes and 74

of the 121 group homes where children are placed (Exh A Birdsong Decl at 12-13) Prior

to receiving a license foster homes and group homes are inspected foster home licenses are

valid for two years and group home licenses are valid for one year See 29 DCMR sect

6030 29 DCMR sect 6210 In addition to the inspections conducted through the licensing

process CFSA conducts monitoring visits of the homes During 2008 congregate care

monitors performed 311 announced and 267 unannounced monitoring visits at group homes

and independent living locations (Exh E Douglas Decl at 4) In August 2008 foster home

monitors visited 410 children in 227 foster homes (Id at 3)

As shown above the District has remedied the host of statutory violations originally

found by the Court The above analysis is not intended to suggest that there is no room for

improvement As also discussed in the next section the District is making appropriate efforts

where improvements can be made See Section C2 infra at 20-22 The above analysis also

does not include additional ldquosystem infrastructurerdquo findings of the Court in 1991 ndash regarding

case tracking caseloads supervision and training ndash which were not based on a specific statutory

requirement and thus cannot be bases for continuation of the consent decree 762 F Supp at

976-79 The subsequent overhaul in system infrastructure is nevertheless addressed as a separate

basis for terminating the consent decree See Section D infra at 22-27 The point here remains

16

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

A Public Policy Favors Local Control Rather Than Court Supervision Over Government Agencies

In its unanimous decision in Frew the Supreme Court held that consent decrees in

institutional reform litigation should be closely limited in scope and duration so that agency

functions are promptly returned to local control A federal district court ldquomust exercise its

equitable powers to ensure that when the objects of the decree have been attained responsibility

for discharging the Statersquos obligations is returned promptly to the State and its officialsrdquo 540

US at 442 (emphasis added)

The Supreme Court elaborated on the important benefits of returning local programs to

local government control First local control is essential to progress and innovation The Court

explained

As public servants the officials of the State must be presumed to have a high degree of competence in deciding how best to discharge their governmental responsibilities A State in the ordinary course depends upon successor officials both appointed and elected to bring new insights and solutions to problems of allocating revenues and resources

Id at 442 accord Dowell 498 US at 248 (ldquoLocal control [over local programs] allows

innovation so that [local programs] can fit local needsrdquo)

The Supreme Court was also concerned by the adverse effect of consent decrees on

separation of powers Consent decrees encroach on local executive and legislative functions

because those decrees bind successor government officials into the indefinite future even to

terms that might never have been entered had the matter been litigated to full conclusion Rufo

502 US at 392 The result is that ldquoif not limited to reasonable and necessary implementations of

federal law remedies outlined in consent decrees may improperly deprive future officials of

their designated legislative and executive powersrdquo Id at 441

6

The Frew Court also disfavored consent decrees because they impair the relationship

between citizens and their elected officials Frew noted the ldquolegitimaterdquo concern that

ldquoenforcement of consent decrees can undermine the accountability of state governmentsrdquo

Id These decrees deprive citizens of a voice through their elected officials in the operation of

their government Conversely through relief from such consent decrees ldquo[l]ocal control over

[local programs] allows citizens to participate in decisionmakingrdquo Dowell 498 US at 248

The Frew decision ultimately ldquostakes out a new positionrdquo in the law to ldquomake it easier for

governmental officials to obtain judicial approval when they seek to modify and terminate an

existing consent decreerdquo Ross Sandler amp David Schoenbrod The Supreme Court Democracy

And Institutional Reform Litigation 49 NYL Sch L Rev 915 919 (2005)

In recent years it is not only the Supreme Court but also the Congress that has

responded to limit enforcement of consent decrees in institutional reform litigation In enacting

the Prison Litigation Reform Act of 1995 18 USC sect 3626(b)(2) the Congress ldquoleft no doubtsrdquo

that it sought to curtail court management of state and local agency functions Taylor v United

States 181 F3d 1017 1027 n1 (9th Cir 1999) (Wardlaw J dissenting) citing eg 141 Cong

Rec S14418 (1995) (statement of Sen Hatch) (ldquoI believe that the courts have gone too far in

micromanaging our Nationrsquos prisonsrdquo) accord Plyler v Moore 100 F3d 365 370 (4th Cir

1996) cert denied 520 US 1277 (1997) (noting ldquoCongressrsquo purpose in enacting the PLRA

[was] to relieve states of the onerous burden of complying with consent decreesrdquo many of which

ldquoreach far beyond the dictates of federal lawrdquo)

Accordingly especially where as here defendants have cured the systemic violations of

law upon which the consent decree was originally predicated important public policy concerns

7

favor the prompt return of local government control rather than the continuation of federal court

supervision

B Defendants Have Corrected the Systemic Violations of the Law Originally Found

by the Court

Consideration of a motion to terminate a consent decree ldquomust begin by determining the

basic purpose of the decreerdquo United States v City of Miami 2 F3d 1497 1505 (11th Cir 1993)

In institutional reform cases a consent decreersquos basic purpose is correcting those systemic

violations of law originally found by the court or stipulated by the parties No other purpose

justifies the continuation of a consent decree in such cases Because in the present case the

District has corrected the systemic violations of the law identified in the Courtrsquos 1991 findings

the consent decreersquos basic purpose has been satisfied

1 A consent decreersquos only justified purpose is to directly address the original violation of law

In light of ldquoconsiderations about allocation of powers within our federal systemrdquo a

consent decree is limited to remedying the substantive law violation As the Supreme Court

explained in Milliken v Bradley 433 US 267 (1977)

Federal-court decrees must directly address and relate to the [] violation [of the law] itself Because of this inherent limitation upon federal judicial authority federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the [applicable law] or does not flow from such a violation

Id at 282 quoted in Dowell 498 US at 247

This limitation on consent decrees ndash that they must be tailored to remedying violations of

the law ndash upholds the separation of powers ldquo[I]t is not the role of courts but that of the political

8

branches to shape the institutions of government in such fashion as to comply with the laws and

the Constitutionrdquo Lewis v Casey 518 US 343 350 (1996) Absent the violation of a legal

right a plaintiff may not ldquoinvoke intervention of the courtsrdquo simply because for example the

plaintiff is ldquobeing subject[ed] to a governmental institution that was not organized or managed

properlyrdquo Id

2 The decreersquos basic purpose of correcting the past systemic violations of

law has been met

As shown below the District has remedied the systemic violations identified in the

Courtrsquos 1991 findings in this case See LaShawn A v Dixon 762 F Supp 959 968-80 (DDC

1991) 1 The proper focus here is on correction of systemic violations of law not whether every

problem has been corrected See RC v Walley 475 F Supp 2d 1118 1144 (MD Ala 2007)

(considering system-wide compliance rather than isolated occurrences)

a Timeliness of abuse and neglect investigations

1991 Finding The Court found that DHSrsquo Child and Family Services Division

(ldquoDivisionrdquo) had ldquofailed to initiate investigations into reports of neglect or abuse within 24

hours and complete investigations within two weeksrdquo 762 F Supp at 970 See DC Code sect

6-2102 (1981 ed) (requiring CFSA to initiate investigations within 24 hours of receiving a 1 While the Court originally found violations of federal and local law subsequent decisions rely upon local law claims only See LaShawn A v Barry 144 F3d 847 852 854 (DC Cir 1998) (noting that ldquo[w]e have before us a consent decree based solely on local lawrdquo and rejecting as inadequate the ldquodistrict courtrsquos 1995 attempt to revive the federal law claimsrdquo) The Court cited federal statutory provisions in its 1991 findings regarding investigations 42 USC sect 5106a preventative services 42 USC sect 5106 placement 42 USC sect 672 case planning services and periodic reviews 42 USC sect 675 and case tracking 42 USC 627 The federal provisions however do not include a private right of action See Suter v Artist M 503 US 347 (1992) Rather the provisions govern grants awarded to states and other federal funding mandates

9

report of neglect) In April 1990 the Division failed to initiate nearly 50 percent of the

reports received within 24 hours Id at 969 The Division ldquoended each month between July

1989 and May 1990 with an average backlog of approximately 1200 reports for which it had

not completed investigationsrdquo Id

Present Based on December 2008 data CFSA initiated or attempted to initiate

70 of investigations within 24 hours of receipt of a report of abuse or neglect and CFSA

initiated or attempted to initiate 90 of investigations within 48 hours (Exh A Birdsong

Decl at 3) As of December 31 2008 only 42 of 405 investigations (about 10) were open

longer than 30 days (Id at 15) See DC Code sectsect 4-130104(b) 4-130106(a) (2001 ed

2008 Repl) (setting a 30-day timeframe for completing investigations)

b Provision of preventative services

1991 finding The Court found ldquothat defendants have consistently failed to

provide [preventative] services or otherwise use lsquoreasonable effortsrsquo to prevent placementrdquo

762 F Supp at 970 See DC Code sectsect 6-2105 6-2124 (1981 ed) (requiring the Division to

provide services to enable a child for whom a report has been made to remain in the home

unless removal is necessary) In support of this finding the Court noted that the Division did

not have drug treatment services or counseling services for parents with substance abuse or

mental health problems and that it did not have housing or job services for parents with

housing or unemployment problems Id

Present As of December 31 2008 CFSA served 2070 children (or 757 families)

where children have remained home following an investigation (Exh A Birdsong Decl at

5) In addition during the first quarter of fiscal year 2009 CFSA referred 413 cases to the

Healthy FamiliesThriving Communities Collaboratives to provide a range of services

10

including short term crisis services case management services and youth aftercare (Exh B

Abney Decl at 3) See also the Court Monitorrsquos July 19 2006 Report at 22-24 (detailing the

significant enhancements in the amount and type of services offered to children and families

since this lawsuit began)

c Placement Voluntary and emergency care

1991 finding The Court found ldquothat the [Division] consistently failed to

comply with the statutory time limits regarding voluntary and emergency carerdquo 762 F

Supp at 971 See DC Code sect 6-2123(a)(2) (1981 ed) (mandating that ldquowithin 90 days of

taking a child into custody [the Division must] return the child to the home or request the

filing of a neglect petition in the Family Division of the Superior Court of the District of

Columbiardquo) In support of its finding the Court noted that as of April 1988 the District did

not have an accurate listing of children in voluntary placements and that one of the named

plaintiffs was in voluntary care for two-and-a-half years Id

Present In December 2008 there were no children in voluntary placements In

addition CFSA does not have any children in ldquoemergencyrdquo care over 90 days without a

petition to the Family Court (Exh A Birdsong Decl at 6) CFSA has a practice of

petitioning cases whenever a child is removed beyond a five-day hold As reported by the

Court Monitor in July 2006 ldquo[t]he District has eliminated the inappropriate use of emergency

care and instituted appropriate child welfare practice of removing children from their homes

only with the sanction of a court orderrdquo (July 19 2006 Report at 40)

11

d Least restrictive placement

1991 finding The Court found that ldquothe [Division] consistently failed to place

children in the least restrictive placements consistent with their needsrdquo 762 F Supp at 972

See DC Code sect 4-130109 (2001 ed) (requiring Division to provide the least restrictive

placement consistent with a childrsquos needs) The District lacked therapeutic foster homes

foster homes to provide short-term or emergency care and sufficient homes to place babies

who have HIV Id It did not maintain an information system to identify vacancies in foster

and group homes and it allowed children to spend entire days in Division offices while the

social workers attempted to find placements Id

Present CFSA maintains a range of placement options to include short-term

care beds therapeutic placements traditional foster care beds medically fragile foster care

beds and congregate care (Exh C Forbes Decl at 3) The list of foster and congregate care

vacancies is updated daily and the list of contracted foster care vacancies is updated weekly

(Id) No children have stayed overnight in CFSA offices because of a lack of placements

since 2005 (Id) In addition as of December 31 2008 70 of children in care are placed in

family-based settings (Exh A Birdsong Decl at 4) See also July 19 2006 Report at 42

(ldquoThe District has made noteworthy advances in the area of placement of children CFSA

has created a separate placement administration to coordinate all placement requests and to

more expeditiously identify placement resources Treatment foster care is now an option for

children entering placement who need itrdquo)

12

e Case Planning

1991 finding The Court found that the Division ldquofrequently assigns inappropriate

goals to the children in its foster care and consistently fails to prepare written case plans to

enable the children to realize their goalsrdquo 762 F Supp at 973-74 See DC Code sect 6-

2107(b) (1981 ed) (requiring the Division to prepare timely case plans for all children in

foster care) The Court noted that 62 of children with a goal of return home did not have a

written case plan as of December 1989 Id at 973

Present CFSA is required to assure that each child has a case plan and that for

children placed outside the home that the plans are reviewed periodically to determine inter

alia continuing necessity of placement and compliance with the case plan See DC Code

sect 4-130109(d) (e) (2001 ed 2008 Repl) As of December 31 2008 96 of children had

timely case plans prepared (Exh A Birdsong Decl at 7) As of November 2008 95 of

children have appropriate goals in their case plans (Court Monitorrsquos January 26 2009

Update at 5) As reported by the Court Monitor ldquoCFSA has made a philosophical shift to

emphasize the Agencyrsquos responsibility to develop plans with families to ensure the safety

permanency and well-being of their childrenrdquo (July 19 2006 Report at 59)

f Services

1991 finding The Court found that the Division ldquoconsistently failed to provide

services once children are removed from their homes and placed in foster carerdquo 762 F

Supp at 974 See DC Code sect 4-130303 (2001 ed 2008 Repl) (requiring CFSA to

maintain and provide treatment and services to families and children where there has been an

abuse or neglect finding) The finding relied upon the Divisionrsquos policy that children

13

entering care undergo a complete medical evaluation prior to placement and that children in

foster care have a monthly face-to-face contact with a social worker Id As of 1989

services were not provided in 77 of cases with a goal of return home (where the children

had entered foster care through voluntary placement) 44 of children did not have a medical

evaluation since entering care and for 64 of children with a plan of return home there was

no evidence that the children had ever been visited by a social worker Id

Present As of December 31 2008 79 of children entering or re-entering care

received a pre-placement medical screening and 87 of the children entering or re-entering

care received a post-placement medical evaluation within 30 days of placement (Exh A

Birdsong Decl at 8-9) The District has also undertaken efforts to improve these numbers

even further See Section C2 infra at 20-22 With regard to social worker visits 96 of the

children in foster care were visited by a social worker at least once and 87 were visited at

least twice in December 2008 (Birdsong Decl at 10) See also July 19 2006 Report at 80

(ldquoCFSA has greatly improved the way in which it supervises placements of children in foster

care CFSA assigns workers to each child and family foster families know their workers and

the level of contact between families and workers has increased substantially since the end of

the Receivershiprdquo)

g Periodic reviews

1991 finding The Court found that the Division consistently failed to provide

ldquoperiodic judicial or administrative reviews for the purpose of determining the continued

need for and appropriateness of placementrdquo 762 F Supp at 974 See DC Code sect 16-2323

(1981 ed) As of December 1989 only 13 of children in foster care received timely

reviews Id

14

Present As of December 31 2008 CFSA timely completed administrative

reviews for 96 of the 2015 children who require administrative reviews (Exh A Birdsong

Decl at 11)

h Adoption

1991 finding The Court found that the Division ldquohas consistently failed to

expedite the progression of the children in its custody toward permanent placement through

adoptionrdquo 762 F Supp at 975 See DC Code sect 6-2123 (1981 ed) (requiring the Division

to prepare a permanent plan for a child who cannot be returned home within a reasonable

time) As of 1989 66 of children with a goal of adoption had not been legally freed for

adoption Id

Present As of February 4 2007 97 of children with a goal of adoption have

had legal action to free them for adoption2 See DC Code sect 16-2323(c)(2) (2001 ed 2008

Supp) (Exh D Reese Decl at para 7)

i Monitoring foster homes and institutions

1991 finding The Court found that the Division ldquoconsistently failed to monitor

foster homes and institutions in accordance with the requirements of District lawrdquo 762 F

Supp at 979 See DC Code sectsect 3-802 3-805 (1981 ed) (requiring facilities providing foster

care to be licensed and inspected annually) In support of this finding the Court noted that

2 The AIP requires that the legal action be taken within 45 days of the goal changing to adoption however the data provided herein reflects legal action taken regardless of the time Also FACES data shows 83 but a manual count shows that 97 of children with a goal of adoption have had legal action taken to free them for adoption The additional 69 children who had legal action were not properly documented in FACES

15

ldquobetween 1988 and July 1990 the Monitoring Unit failed to monitor any of the foster homes

operated by the Consortium for Child Welfare in which District children were placedrdquo Id

Present In 2001 the District enacted a regulatory framework to govern foster

and group homes See generally 29 DCMR sect 6000 et seq 29 DCMR sect 6200 et seq As

of December 31 2008 current licenses existed for 90 of the 1013 foster homes and 74

of the 121 group homes where children are placed (Exh A Birdsong Decl at 12-13) Prior

to receiving a license foster homes and group homes are inspected foster home licenses are

valid for two years and group home licenses are valid for one year See 29 DCMR sect

6030 29 DCMR sect 6210 In addition to the inspections conducted through the licensing

process CFSA conducts monitoring visits of the homes During 2008 congregate care

monitors performed 311 announced and 267 unannounced monitoring visits at group homes

and independent living locations (Exh E Douglas Decl at 4) In August 2008 foster home

monitors visited 410 children in 227 foster homes (Id at 3)

As shown above the District has remedied the host of statutory violations originally

found by the Court The above analysis is not intended to suggest that there is no room for

improvement As also discussed in the next section the District is making appropriate efforts

where improvements can be made See Section C2 infra at 20-22 The above analysis also

does not include additional ldquosystem infrastructurerdquo findings of the Court in 1991 ndash regarding

case tracking caseloads supervision and training ndash which were not based on a specific statutory

requirement and thus cannot be bases for continuation of the consent decree 762 F Supp at

976-79 The subsequent overhaul in system infrastructure is nevertheless addressed as a separate

basis for terminating the consent decree See Section D infra at 22-27 The point here remains

16

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

The Frew Court also disfavored consent decrees because they impair the relationship

between citizens and their elected officials Frew noted the ldquolegitimaterdquo concern that

ldquoenforcement of consent decrees can undermine the accountability of state governmentsrdquo

Id These decrees deprive citizens of a voice through their elected officials in the operation of

their government Conversely through relief from such consent decrees ldquo[l]ocal control over

[local programs] allows citizens to participate in decisionmakingrdquo Dowell 498 US at 248

The Frew decision ultimately ldquostakes out a new positionrdquo in the law to ldquomake it easier for

governmental officials to obtain judicial approval when they seek to modify and terminate an

existing consent decreerdquo Ross Sandler amp David Schoenbrod The Supreme Court Democracy

And Institutional Reform Litigation 49 NYL Sch L Rev 915 919 (2005)

In recent years it is not only the Supreme Court but also the Congress that has

responded to limit enforcement of consent decrees in institutional reform litigation In enacting

the Prison Litigation Reform Act of 1995 18 USC sect 3626(b)(2) the Congress ldquoleft no doubtsrdquo

that it sought to curtail court management of state and local agency functions Taylor v United

States 181 F3d 1017 1027 n1 (9th Cir 1999) (Wardlaw J dissenting) citing eg 141 Cong

Rec S14418 (1995) (statement of Sen Hatch) (ldquoI believe that the courts have gone too far in

micromanaging our Nationrsquos prisonsrdquo) accord Plyler v Moore 100 F3d 365 370 (4th Cir

1996) cert denied 520 US 1277 (1997) (noting ldquoCongressrsquo purpose in enacting the PLRA

[was] to relieve states of the onerous burden of complying with consent decreesrdquo many of which

ldquoreach far beyond the dictates of federal lawrdquo)

Accordingly especially where as here defendants have cured the systemic violations of

law upon which the consent decree was originally predicated important public policy concerns

7

favor the prompt return of local government control rather than the continuation of federal court

supervision

B Defendants Have Corrected the Systemic Violations of the Law Originally Found

by the Court

Consideration of a motion to terminate a consent decree ldquomust begin by determining the

basic purpose of the decreerdquo United States v City of Miami 2 F3d 1497 1505 (11th Cir 1993)

In institutional reform cases a consent decreersquos basic purpose is correcting those systemic

violations of law originally found by the court or stipulated by the parties No other purpose

justifies the continuation of a consent decree in such cases Because in the present case the

District has corrected the systemic violations of the law identified in the Courtrsquos 1991 findings

the consent decreersquos basic purpose has been satisfied

1 A consent decreersquos only justified purpose is to directly address the original violation of law

In light of ldquoconsiderations about allocation of powers within our federal systemrdquo a

consent decree is limited to remedying the substantive law violation As the Supreme Court

explained in Milliken v Bradley 433 US 267 (1977)

Federal-court decrees must directly address and relate to the [] violation [of the law] itself Because of this inherent limitation upon federal judicial authority federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the [applicable law] or does not flow from such a violation

Id at 282 quoted in Dowell 498 US at 247

This limitation on consent decrees ndash that they must be tailored to remedying violations of

the law ndash upholds the separation of powers ldquo[I]t is not the role of courts but that of the political

8

branches to shape the institutions of government in such fashion as to comply with the laws and

the Constitutionrdquo Lewis v Casey 518 US 343 350 (1996) Absent the violation of a legal

right a plaintiff may not ldquoinvoke intervention of the courtsrdquo simply because for example the

plaintiff is ldquobeing subject[ed] to a governmental institution that was not organized or managed

properlyrdquo Id

2 The decreersquos basic purpose of correcting the past systemic violations of

law has been met

As shown below the District has remedied the systemic violations identified in the

Courtrsquos 1991 findings in this case See LaShawn A v Dixon 762 F Supp 959 968-80 (DDC

1991) 1 The proper focus here is on correction of systemic violations of law not whether every

problem has been corrected See RC v Walley 475 F Supp 2d 1118 1144 (MD Ala 2007)

(considering system-wide compliance rather than isolated occurrences)

a Timeliness of abuse and neglect investigations

1991 Finding The Court found that DHSrsquo Child and Family Services Division

(ldquoDivisionrdquo) had ldquofailed to initiate investigations into reports of neglect or abuse within 24

hours and complete investigations within two weeksrdquo 762 F Supp at 970 See DC Code sect

6-2102 (1981 ed) (requiring CFSA to initiate investigations within 24 hours of receiving a 1 While the Court originally found violations of federal and local law subsequent decisions rely upon local law claims only See LaShawn A v Barry 144 F3d 847 852 854 (DC Cir 1998) (noting that ldquo[w]e have before us a consent decree based solely on local lawrdquo and rejecting as inadequate the ldquodistrict courtrsquos 1995 attempt to revive the federal law claimsrdquo) The Court cited federal statutory provisions in its 1991 findings regarding investigations 42 USC sect 5106a preventative services 42 USC sect 5106 placement 42 USC sect 672 case planning services and periodic reviews 42 USC sect 675 and case tracking 42 USC 627 The federal provisions however do not include a private right of action See Suter v Artist M 503 US 347 (1992) Rather the provisions govern grants awarded to states and other federal funding mandates

9

report of neglect) In April 1990 the Division failed to initiate nearly 50 percent of the

reports received within 24 hours Id at 969 The Division ldquoended each month between July

1989 and May 1990 with an average backlog of approximately 1200 reports for which it had

not completed investigationsrdquo Id

Present Based on December 2008 data CFSA initiated or attempted to initiate

70 of investigations within 24 hours of receipt of a report of abuse or neglect and CFSA

initiated or attempted to initiate 90 of investigations within 48 hours (Exh A Birdsong

Decl at 3) As of December 31 2008 only 42 of 405 investigations (about 10) were open

longer than 30 days (Id at 15) See DC Code sectsect 4-130104(b) 4-130106(a) (2001 ed

2008 Repl) (setting a 30-day timeframe for completing investigations)

b Provision of preventative services

1991 finding The Court found ldquothat defendants have consistently failed to

provide [preventative] services or otherwise use lsquoreasonable effortsrsquo to prevent placementrdquo

762 F Supp at 970 See DC Code sectsect 6-2105 6-2124 (1981 ed) (requiring the Division to

provide services to enable a child for whom a report has been made to remain in the home

unless removal is necessary) In support of this finding the Court noted that the Division did

not have drug treatment services or counseling services for parents with substance abuse or

mental health problems and that it did not have housing or job services for parents with

housing or unemployment problems Id

Present As of December 31 2008 CFSA served 2070 children (or 757 families)

where children have remained home following an investigation (Exh A Birdsong Decl at

5) In addition during the first quarter of fiscal year 2009 CFSA referred 413 cases to the

Healthy FamiliesThriving Communities Collaboratives to provide a range of services

10

including short term crisis services case management services and youth aftercare (Exh B

Abney Decl at 3) See also the Court Monitorrsquos July 19 2006 Report at 22-24 (detailing the

significant enhancements in the amount and type of services offered to children and families

since this lawsuit began)

c Placement Voluntary and emergency care

1991 finding The Court found ldquothat the [Division] consistently failed to

comply with the statutory time limits regarding voluntary and emergency carerdquo 762 F

Supp at 971 See DC Code sect 6-2123(a)(2) (1981 ed) (mandating that ldquowithin 90 days of

taking a child into custody [the Division must] return the child to the home or request the

filing of a neglect petition in the Family Division of the Superior Court of the District of

Columbiardquo) In support of its finding the Court noted that as of April 1988 the District did

not have an accurate listing of children in voluntary placements and that one of the named

plaintiffs was in voluntary care for two-and-a-half years Id

Present In December 2008 there were no children in voluntary placements In

addition CFSA does not have any children in ldquoemergencyrdquo care over 90 days without a

petition to the Family Court (Exh A Birdsong Decl at 6) CFSA has a practice of

petitioning cases whenever a child is removed beyond a five-day hold As reported by the

Court Monitor in July 2006 ldquo[t]he District has eliminated the inappropriate use of emergency

care and instituted appropriate child welfare practice of removing children from their homes

only with the sanction of a court orderrdquo (July 19 2006 Report at 40)

11

d Least restrictive placement

1991 finding The Court found that ldquothe [Division] consistently failed to place

children in the least restrictive placements consistent with their needsrdquo 762 F Supp at 972

See DC Code sect 4-130109 (2001 ed) (requiring Division to provide the least restrictive

placement consistent with a childrsquos needs) The District lacked therapeutic foster homes

foster homes to provide short-term or emergency care and sufficient homes to place babies

who have HIV Id It did not maintain an information system to identify vacancies in foster

and group homes and it allowed children to spend entire days in Division offices while the

social workers attempted to find placements Id

Present CFSA maintains a range of placement options to include short-term

care beds therapeutic placements traditional foster care beds medically fragile foster care

beds and congregate care (Exh C Forbes Decl at 3) The list of foster and congregate care

vacancies is updated daily and the list of contracted foster care vacancies is updated weekly

(Id) No children have stayed overnight in CFSA offices because of a lack of placements

since 2005 (Id) In addition as of December 31 2008 70 of children in care are placed in

family-based settings (Exh A Birdsong Decl at 4) See also July 19 2006 Report at 42

(ldquoThe District has made noteworthy advances in the area of placement of children CFSA

has created a separate placement administration to coordinate all placement requests and to

more expeditiously identify placement resources Treatment foster care is now an option for

children entering placement who need itrdquo)

12

e Case Planning

1991 finding The Court found that the Division ldquofrequently assigns inappropriate

goals to the children in its foster care and consistently fails to prepare written case plans to

enable the children to realize their goalsrdquo 762 F Supp at 973-74 See DC Code sect 6-

2107(b) (1981 ed) (requiring the Division to prepare timely case plans for all children in

foster care) The Court noted that 62 of children with a goal of return home did not have a

written case plan as of December 1989 Id at 973

Present CFSA is required to assure that each child has a case plan and that for

children placed outside the home that the plans are reviewed periodically to determine inter

alia continuing necessity of placement and compliance with the case plan See DC Code

sect 4-130109(d) (e) (2001 ed 2008 Repl) As of December 31 2008 96 of children had

timely case plans prepared (Exh A Birdsong Decl at 7) As of November 2008 95 of

children have appropriate goals in their case plans (Court Monitorrsquos January 26 2009

Update at 5) As reported by the Court Monitor ldquoCFSA has made a philosophical shift to

emphasize the Agencyrsquos responsibility to develop plans with families to ensure the safety

permanency and well-being of their childrenrdquo (July 19 2006 Report at 59)

f Services

1991 finding The Court found that the Division ldquoconsistently failed to provide

services once children are removed from their homes and placed in foster carerdquo 762 F

Supp at 974 See DC Code sect 4-130303 (2001 ed 2008 Repl) (requiring CFSA to

maintain and provide treatment and services to families and children where there has been an

abuse or neglect finding) The finding relied upon the Divisionrsquos policy that children

13

entering care undergo a complete medical evaluation prior to placement and that children in

foster care have a monthly face-to-face contact with a social worker Id As of 1989

services were not provided in 77 of cases with a goal of return home (where the children

had entered foster care through voluntary placement) 44 of children did not have a medical

evaluation since entering care and for 64 of children with a plan of return home there was

no evidence that the children had ever been visited by a social worker Id

Present As of December 31 2008 79 of children entering or re-entering care

received a pre-placement medical screening and 87 of the children entering or re-entering

care received a post-placement medical evaluation within 30 days of placement (Exh A

Birdsong Decl at 8-9) The District has also undertaken efforts to improve these numbers

even further See Section C2 infra at 20-22 With regard to social worker visits 96 of the

children in foster care were visited by a social worker at least once and 87 were visited at

least twice in December 2008 (Birdsong Decl at 10) See also July 19 2006 Report at 80

(ldquoCFSA has greatly improved the way in which it supervises placements of children in foster

care CFSA assigns workers to each child and family foster families know their workers and

the level of contact between families and workers has increased substantially since the end of

the Receivershiprdquo)

g Periodic reviews

1991 finding The Court found that the Division consistently failed to provide

ldquoperiodic judicial or administrative reviews for the purpose of determining the continued

need for and appropriateness of placementrdquo 762 F Supp at 974 See DC Code sect 16-2323

(1981 ed) As of December 1989 only 13 of children in foster care received timely

reviews Id

14

Present As of December 31 2008 CFSA timely completed administrative

reviews for 96 of the 2015 children who require administrative reviews (Exh A Birdsong

Decl at 11)

h Adoption

1991 finding The Court found that the Division ldquohas consistently failed to

expedite the progression of the children in its custody toward permanent placement through

adoptionrdquo 762 F Supp at 975 See DC Code sect 6-2123 (1981 ed) (requiring the Division

to prepare a permanent plan for a child who cannot be returned home within a reasonable

time) As of 1989 66 of children with a goal of adoption had not been legally freed for

adoption Id

Present As of February 4 2007 97 of children with a goal of adoption have

had legal action to free them for adoption2 See DC Code sect 16-2323(c)(2) (2001 ed 2008

Supp) (Exh D Reese Decl at para 7)

i Monitoring foster homes and institutions

1991 finding The Court found that the Division ldquoconsistently failed to monitor

foster homes and institutions in accordance with the requirements of District lawrdquo 762 F

Supp at 979 See DC Code sectsect 3-802 3-805 (1981 ed) (requiring facilities providing foster

care to be licensed and inspected annually) In support of this finding the Court noted that

2 The AIP requires that the legal action be taken within 45 days of the goal changing to adoption however the data provided herein reflects legal action taken regardless of the time Also FACES data shows 83 but a manual count shows that 97 of children with a goal of adoption have had legal action taken to free them for adoption The additional 69 children who had legal action were not properly documented in FACES

15

ldquobetween 1988 and July 1990 the Monitoring Unit failed to monitor any of the foster homes

operated by the Consortium for Child Welfare in which District children were placedrdquo Id

Present In 2001 the District enacted a regulatory framework to govern foster

and group homes See generally 29 DCMR sect 6000 et seq 29 DCMR sect 6200 et seq As

of December 31 2008 current licenses existed for 90 of the 1013 foster homes and 74

of the 121 group homes where children are placed (Exh A Birdsong Decl at 12-13) Prior

to receiving a license foster homes and group homes are inspected foster home licenses are

valid for two years and group home licenses are valid for one year See 29 DCMR sect

6030 29 DCMR sect 6210 In addition to the inspections conducted through the licensing

process CFSA conducts monitoring visits of the homes During 2008 congregate care

monitors performed 311 announced and 267 unannounced monitoring visits at group homes

and independent living locations (Exh E Douglas Decl at 4) In August 2008 foster home

monitors visited 410 children in 227 foster homes (Id at 3)

As shown above the District has remedied the host of statutory violations originally

found by the Court The above analysis is not intended to suggest that there is no room for

improvement As also discussed in the next section the District is making appropriate efforts

where improvements can be made See Section C2 infra at 20-22 The above analysis also

does not include additional ldquosystem infrastructurerdquo findings of the Court in 1991 ndash regarding

case tracking caseloads supervision and training ndash which were not based on a specific statutory

requirement and thus cannot be bases for continuation of the consent decree 762 F Supp at

976-79 The subsequent overhaul in system infrastructure is nevertheless addressed as a separate

basis for terminating the consent decree See Section D infra at 22-27 The point here remains

16

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

favor the prompt return of local government control rather than the continuation of federal court

supervision

B Defendants Have Corrected the Systemic Violations of the Law Originally Found

by the Court

Consideration of a motion to terminate a consent decree ldquomust begin by determining the

basic purpose of the decreerdquo United States v City of Miami 2 F3d 1497 1505 (11th Cir 1993)

In institutional reform cases a consent decreersquos basic purpose is correcting those systemic

violations of law originally found by the court or stipulated by the parties No other purpose

justifies the continuation of a consent decree in such cases Because in the present case the

District has corrected the systemic violations of the law identified in the Courtrsquos 1991 findings

the consent decreersquos basic purpose has been satisfied

1 A consent decreersquos only justified purpose is to directly address the original violation of law

In light of ldquoconsiderations about allocation of powers within our federal systemrdquo a

consent decree is limited to remedying the substantive law violation As the Supreme Court

explained in Milliken v Bradley 433 US 267 (1977)

Federal-court decrees must directly address and relate to the [] violation [of the law] itself Because of this inherent limitation upon federal judicial authority federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the [applicable law] or does not flow from such a violation

Id at 282 quoted in Dowell 498 US at 247

This limitation on consent decrees ndash that they must be tailored to remedying violations of

the law ndash upholds the separation of powers ldquo[I]t is not the role of courts but that of the political

8

branches to shape the institutions of government in such fashion as to comply with the laws and

the Constitutionrdquo Lewis v Casey 518 US 343 350 (1996) Absent the violation of a legal

right a plaintiff may not ldquoinvoke intervention of the courtsrdquo simply because for example the

plaintiff is ldquobeing subject[ed] to a governmental institution that was not organized or managed

properlyrdquo Id

2 The decreersquos basic purpose of correcting the past systemic violations of

law has been met

As shown below the District has remedied the systemic violations identified in the

Courtrsquos 1991 findings in this case See LaShawn A v Dixon 762 F Supp 959 968-80 (DDC

1991) 1 The proper focus here is on correction of systemic violations of law not whether every

problem has been corrected See RC v Walley 475 F Supp 2d 1118 1144 (MD Ala 2007)

(considering system-wide compliance rather than isolated occurrences)

a Timeliness of abuse and neglect investigations

1991 Finding The Court found that DHSrsquo Child and Family Services Division

(ldquoDivisionrdquo) had ldquofailed to initiate investigations into reports of neglect or abuse within 24

hours and complete investigations within two weeksrdquo 762 F Supp at 970 See DC Code sect

6-2102 (1981 ed) (requiring CFSA to initiate investigations within 24 hours of receiving a 1 While the Court originally found violations of federal and local law subsequent decisions rely upon local law claims only See LaShawn A v Barry 144 F3d 847 852 854 (DC Cir 1998) (noting that ldquo[w]e have before us a consent decree based solely on local lawrdquo and rejecting as inadequate the ldquodistrict courtrsquos 1995 attempt to revive the federal law claimsrdquo) The Court cited federal statutory provisions in its 1991 findings regarding investigations 42 USC sect 5106a preventative services 42 USC sect 5106 placement 42 USC sect 672 case planning services and periodic reviews 42 USC sect 675 and case tracking 42 USC 627 The federal provisions however do not include a private right of action See Suter v Artist M 503 US 347 (1992) Rather the provisions govern grants awarded to states and other federal funding mandates

9

report of neglect) In April 1990 the Division failed to initiate nearly 50 percent of the

reports received within 24 hours Id at 969 The Division ldquoended each month between July

1989 and May 1990 with an average backlog of approximately 1200 reports for which it had

not completed investigationsrdquo Id

Present Based on December 2008 data CFSA initiated or attempted to initiate

70 of investigations within 24 hours of receipt of a report of abuse or neglect and CFSA

initiated or attempted to initiate 90 of investigations within 48 hours (Exh A Birdsong

Decl at 3) As of December 31 2008 only 42 of 405 investigations (about 10) were open

longer than 30 days (Id at 15) See DC Code sectsect 4-130104(b) 4-130106(a) (2001 ed

2008 Repl) (setting a 30-day timeframe for completing investigations)

b Provision of preventative services

1991 finding The Court found ldquothat defendants have consistently failed to

provide [preventative] services or otherwise use lsquoreasonable effortsrsquo to prevent placementrdquo

762 F Supp at 970 See DC Code sectsect 6-2105 6-2124 (1981 ed) (requiring the Division to

provide services to enable a child for whom a report has been made to remain in the home

unless removal is necessary) In support of this finding the Court noted that the Division did

not have drug treatment services or counseling services for parents with substance abuse or

mental health problems and that it did not have housing or job services for parents with

housing or unemployment problems Id

Present As of December 31 2008 CFSA served 2070 children (or 757 families)

where children have remained home following an investigation (Exh A Birdsong Decl at

5) In addition during the first quarter of fiscal year 2009 CFSA referred 413 cases to the

Healthy FamiliesThriving Communities Collaboratives to provide a range of services

10

including short term crisis services case management services and youth aftercare (Exh B

Abney Decl at 3) See also the Court Monitorrsquos July 19 2006 Report at 22-24 (detailing the

significant enhancements in the amount and type of services offered to children and families

since this lawsuit began)

c Placement Voluntary and emergency care

1991 finding The Court found ldquothat the [Division] consistently failed to

comply with the statutory time limits regarding voluntary and emergency carerdquo 762 F

Supp at 971 See DC Code sect 6-2123(a)(2) (1981 ed) (mandating that ldquowithin 90 days of

taking a child into custody [the Division must] return the child to the home or request the

filing of a neglect petition in the Family Division of the Superior Court of the District of

Columbiardquo) In support of its finding the Court noted that as of April 1988 the District did

not have an accurate listing of children in voluntary placements and that one of the named

plaintiffs was in voluntary care for two-and-a-half years Id

Present In December 2008 there were no children in voluntary placements In

addition CFSA does not have any children in ldquoemergencyrdquo care over 90 days without a

petition to the Family Court (Exh A Birdsong Decl at 6) CFSA has a practice of

petitioning cases whenever a child is removed beyond a five-day hold As reported by the

Court Monitor in July 2006 ldquo[t]he District has eliminated the inappropriate use of emergency

care and instituted appropriate child welfare practice of removing children from their homes

only with the sanction of a court orderrdquo (July 19 2006 Report at 40)

11

d Least restrictive placement

1991 finding The Court found that ldquothe [Division] consistently failed to place

children in the least restrictive placements consistent with their needsrdquo 762 F Supp at 972

See DC Code sect 4-130109 (2001 ed) (requiring Division to provide the least restrictive

placement consistent with a childrsquos needs) The District lacked therapeutic foster homes

foster homes to provide short-term or emergency care and sufficient homes to place babies

who have HIV Id It did not maintain an information system to identify vacancies in foster

and group homes and it allowed children to spend entire days in Division offices while the

social workers attempted to find placements Id

Present CFSA maintains a range of placement options to include short-term

care beds therapeutic placements traditional foster care beds medically fragile foster care

beds and congregate care (Exh C Forbes Decl at 3) The list of foster and congregate care

vacancies is updated daily and the list of contracted foster care vacancies is updated weekly

(Id) No children have stayed overnight in CFSA offices because of a lack of placements

since 2005 (Id) In addition as of December 31 2008 70 of children in care are placed in

family-based settings (Exh A Birdsong Decl at 4) See also July 19 2006 Report at 42

(ldquoThe District has made noteworthy advances in the area of placement of children CFSA

has created a separate placement administration to coordinate all placement requests and to

more expeditiously identify placement resources Treatment foster care is now an option for

children entering placement who need itrdquo)

12

e Case Planning

1991 finding The Court found that the Division ldquofrequently assigns inappropriate

goals to the children in its foster care and consistently fails to prepare written case plans to

enable the children to realize their goalsrdquo 762 F Supp at 973-74 See DC Code sect 6-

2107(b) (1981 ed) (requiring the Division to prepare timely case plans for all children in

foster care) The Court noted that 62 of children with a goal of return home did not have a

written case plan as of December 1989 Id at 973

Present CFSA is required to assure that each child has a case plan and that for

children placed outside the home that the plans are reviewed periodically to determine inter

alia continuing necessity of placement and compliance with the case plan See DC Code

sect 4-130109(d) (e) (2001 ed 2008 Repl) As of December 31 2008 96 of children had

timely case plans prepared (Exh A Birdsong Decl at 7) As of November 2008 95 of

children have appropriate goals in their case plans (Court Monitorrsquos January 26 2009

Update at 5) As reported by the Court Monitor ldquoCFSA has made a philosophical shift to

emphasize the Agencyrsquos responsibility to develop plans with families to ensure the safety

permanency and well-being of their childrenrdquo (July 19 2006 Report at 59)

f Services

1991 finding The Court found that the Division ldquoconsistently failed to provide

services once children are removed from their homes and placed in foster carerdquo 762 F

Supp at 974 See DC Code sect 4-130303 (2001 ed 2008 Repl) (requiring CFSA to

maintain and provide treatment and services to families and children where there has been an

abuse or neglect finding) The finding relied upon the Divisionrsquos policy that children

13

entering care undergo a complete medical evaluation prior to placement and that children in

foster care have a monthly face-to-face contact with a social worker Id As of 1989

services were not provided in 77 of cases with a goal of return home (where the children

had entered foster care through voluntary placement) 44 of children did not have a medical

evaluation since entering care and for 64 of children with a plan of return home there was

no evidence that the children had ever been visited by a social worker Id

Present As of December 31 2008 79 of children entering or re-entering care

received a pre-placement medical screening and 87 of the children entering or re-entering

care received a post-placement medical evaluation within 30 days of placement (Exh A

Birdsong Decl at 8-9) The District has also undertaken efforts to improve these numbers

even further See Section C2 infra at 20-22 With regard to social worker visits 96 of the

children in foster care were visited by a social worker at least once and 87 were visited at

least twice in December 2008 (Birdsong Decl at 10) See also July 19 2006 Report at 80

(ldquoCFSA has greatly improved the way in which it supervises placements of children in foster

care CFSA assigns workers to each child and family foster families know their workers and

the level of contact between families and workers has increased substantially since the end of

the Receivershiprdquo)

g Periodic reviews

1991 finding The Court found that the Division consistently failed to provide

ldquoperiodic judicial or administrative reviews for the purpose of determining the continued

need for and appropriateness of placementrdquo 762 F Supp at 974 See DC Code sect 16-2323

(1981 ed) As of December 1989 only 13 of children in foster care received timely

reviews Id

14

Present As of December 31 2008 CFSA timely completed administrative

reviews for 96 of the 2015 children who require administrative reviews (Exh A Birdsong

Decl at 11)

h Adoption

1991 finding The Court found that the Division ldquohas consistently failed to

expedite the progression of the children in its custody toward permanent placement through

adoptionrdquo 762 F Supp at 975 See DC Code sect 6-2123 (1981 ed) (requiring the Division

to prepare a permanent plan for a child who cannot be returned home within a reasonable

time) As of 1989 66 of children with a goal of adoption had not been legally freed for

adoption Id

Present As of February 4 2007 97 of children with a goal of adoption have

had legal action to free them for adoption2 See DC Code sect 16-2323(c)(2) (2001 ed 2008

Supp) (Exh D Reese Decl at para 7)

i Monitoring foster homes and institutions

1991 finding The Court found that the Division ldquoconsistently failed to monitor

foster homes and institutions in accordance with the requirements of District lawrdquo 762 F

Supp at 979 See DC Code sectsect 3-802 3-805 (1981 ed) (requiring facilities providing foster

care to be licensed and inspected annually) In support of this finding the Court noted that

2 The AIP requires that the legal action be taken within 45 days of the goal changing to adoption however the data provided herein reflects legal action taken regardless of the time Also FACES data shows 83 but a manual count shows that 97 of children with a goal of adoption have had legal action taken to free them for adoption The additional 69 children who had legal action were not properly documented in FACES

15

ldquobetween 1988 and July 1990 the Monitoring Unit failed to monitor any of the foster homes

operated by the Consortium for Child Welfare in which District children were placedrdquo Id

Present In 2001 the District enacted a regulatory framework to govern foster

and group homes See generally 29 DCMR sect 6000 et seq 29 DCMR sect 6200 et seq As

of December 31 2008 current licenses existed for 90 of the 1013 foster homes and 74

of the 121 group homes where children are placed (Exh A Birdsong Decl at 12-13) Prior

to receiving a license foster homes and group homes are inspected foster home licenses are

valid for two years and group home licenses are valid for one year See 29 DCMR sect

6030 29 DCMR sect 6210 In addition to the inspections conducted through the licensing

process CFSA conducts monitoring visits of the homes During 2008 congregate care

monitors performed 311 announced and 267 unannounced monitoring visits at group homes

and independent living locations (Exh E Douglas Decl at 4) In August 2008 foster home

monitors visited 410 children in 227 foster homes (Id at 3)

As shown above the District has remedied the host of statutory violations originally

found by the Court The above analysis is not intended to suggest that there is no room for

improvement As also discussed in the next section the District is making appropriate efforts

where improvements can be made See Section C2 infra at 20-22 The above analysis also

does not include additional ldquosystem infrastructurerdquo findings of the Court in 1991 ndash regarding

case tracking caseloads supervision and training ndash which were not based on a specific statutory

requirement and thus cannot be bases for continuation of the consent decree 762 F Supp at

976-79 The subsequent overhaul in system infrastructure is nevertheless addressed as a separate

basis for terminating the consent decree See Section D infra at 22-27 The point here remains

16

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

branches to shape the institutions of government in such fashion as to comply with the laws and

the Constitutionrdquo Lewis v Casey 518 US 343 350 (1996) Absent the violation of a legal

right a plaintiff may not ldquoinvoke intervention of the courtsrdquo simply because for example the

plaintiff is ldquobeing subject[ed] to a governmental institution that was not organized or managed

properlyrdquo Id

2 The decreersquos basic purpose of correcting the past systemic violations of

law has been met

As shown below the District has remedied the systemic violations identified in the

Courtrsquos 1991 findings in this case See LaShawn A v Dixon 762 F Supp 959 968-80 (DDC

1991) 1 The proper focus here is on correction of systemic violations of law not whether every

problem has been corrected See RC v Walley 475 F Supp 2d 1118 1144 (MD Ala 2007)

(considering system-wide compliance rather than isolated occurrences)

a Timeliness of abuse and neglect investigations

1991 Finding The Court found that DHSrsquo Child and Family Services Division

(ldquoDivisionrdquo) had ldquofailed to initiate investigations into reports of neglect or abuse within 24

hours and complete investigations within two weeksrdquo 762 F Supp at 970 See DC Code sect

6-2102 (1981 ed) (requiring CFSA to initiate investigations within 24 hours of receiving a 1 While the Court originally found violations of federal and local law subsequent decisions rely upon local law claims only See LaShawn A v Barry 144 F3d 847 852 854 (DC Cir 1998) (noting that ldquo[w]e have before us a consent decree based solely on local lawrdquo and rejecting as inadequate the ldquodistrict courtrsquos 1995 attempt to revive the federal law claimsrdquo) The Court cited federal statutory provisions in its 1991 findings regarding investigations 42 USC sect 5106a preventative services 42 USC sect 5106 placement 42 USC sect 672 case planning services and periodic reviews 42 USC sect 675 and case tracking 42 USC 627 The federal provisions however do not include a private right of action See Suter v Artist M 503 US 347 (1992) Rather the provisions govern grants awarded to states and other federal funding mandates

9

report of neglect) In April 1990 the Division failed to initiate nearly 50 percent of the

reports received within 24 hours Id at 969 The Division ldquoended each month between July

1989 and May 1990 with an average backlog of approximately 1200 reports for which it had

not completed investigationsrdquo Id

Present Based on December 2008 data CFSA initiated or attempted to initiate

70 of investigations within 24 hours of receipt of a report of abuse or neglect and CFSA

initiated or attempted to initiate 90 of investigations within 48 hours (Exh A Birdsong

Decl at 3) As of December 31 2008 only 42 of 405 investigations (about 10) were open

longer than 30 days (Id at 15) See DC Code sectsect 4-130104(b) 4-130106(a) (2001 ed

2008 Repl) (setting a 30-day timeframe for completing investigations)

b Provision of preventative services

1991 finding The Court found ldquothat defendants have consistently failed to

provide [preventative] services or otherwise use lsquoreasonable effortsrsquo to prevent placementrdquo

762 F Supp at 970 See DC Code sectsect 6-2105 6-2124 (1981 ed) (requiring the Division to

provide services to enable a child for whom a report has been made to remain in the home

unless removal is necessary) In support of this finding the Court noted that the Division did

not have drug treatment services or counseling services for parents with substance abuse or

mental health problems and that it did not have housing or job services for parents with

housing or unemployment problems Id

Present As of December 31 2008 CFSA served 2070 children (or 757 families)

where children have remained home following an investigation (Exh A Birdsong Decl at

5) In addition during the first quarter of fiscal year 2009 CFSA referred 413 cases to the

Healthy FamiliesThriving Communities Collaboratives to provide a range of services

10

including short term crisis services case management services and youth aftercare (Exh B

Abney Decl at 3) See also the Court Monitorrsquos July 19 2006 Report at 22-24 (detailing the

significant enhancements in the amount and type of services offered to children and families

since this lawsuit began)

c Placement Voluntary and emergency care

1991 finding The Court found ldquothat the [Division] consistently failed to

comply with the statutory time limits regarding voluntary and emergency carerdquo 762 F

Supp at 971 See DC Code sect 6-2123(a)(2) (1981 ed) (mandating that ldquowithin 90 days of

taking a child into custody [the Division must] return the child to the home or request the

filing of a neglect petition in the Family Division of the Superior Court of the District of

Columbiardquo) In support of its finding the Court noted that as of April 1988 the District did

not have an accurate listing of children in voluntary placements and that one of the named

plaintiffs was in voluntary care for two-and-a-half years Id

Present In December 2008 there were no children in voluntary placements In

addition CFSA does not have any children in ldquoemergencyrdquo care over 90 days without a

petition to the Family Court (Exh A Birdsong Decl at 6) CFSA has a practice of

petitioning cases whenever a child is removed beyond a five-day hold As reported by the

Court Monitor in July 2006 ldquo[t]he District has eliminated the inappropriate use of emergency

care and instituted appropriate child welfare practice of removing children from their homes

only with the sanction of a court orderrdquo (July 19 2006 Report at 40)

11

d Least restrictive placement

1991 finding The Court found that ldquothe [Division] consistently failed to place

children in the least restrictive placements consistent with their needsrdquo 762 F Supp at 972

See DC Code sect 4-130109 (2001 ed) (requiring Division to provide the least restrictive

placement consistent with a childrsquos needs) The District lacked therapeutic foster homes

foster homes to provide short-term or emergency care and sufficient homes to place babies

who have HIV Id It did not maintain an information system to identify vacancies in foster

and group homes and it allowed children to spend entire days in Division offices while the

social workers attempted to find placements Id

Present CFSA maintains a range of placement options to include short-term

care beds therapeutic placements traditional foster care beds medically fragile foster care

beds and congregate care (Exh C Forbes Decl at 3) The list of foster and congregate care

vacancies is updated daily and the list of contracted foster care vacancies is updated weekly

(Id) No children have stayed overnight in CFSA offices because of a lack of placements

since 2005 (Id) In addition as of December 31 2008 70 of children in care are placed in

family-based settings (Exh A Birdsong Decl at 4) See also July 19 2006 Report at 42

(ldquoThe District has made noteworthy advances in the area of placement of children CFSA

has created a separate placement administration to coordinate all placement requests and to

more expeditiously identify placement resources Treatment foster care is now an option for

children entering placement who need itrdquo)

12

e Case Planning

1991 finding The Court found that the Division ldquofrequently assigns inappropriate

goals to the children in its foster care and consistently fails to prepare written case plans to

enable the children to realize their goalsrdquo 762 F Supp at 973-74 See DC Code sect 6-

2107(b) (1981 ed) (requiring the Division to prepare timely case plans for all children in

foster care) The Court noted that 62 of children with a goal of return home did not have a

written case plan as of December 1989 Id at 973

Present CFSA is required to assure that each child has a case plan and that for

children placed outside the home that the plans are reviewed periodically to determine inter

alia continuing necessity of placement and compliance with the case plan See DC Code

sect 4-130109(d) (e) (2001 ed 2008 Repl) As of December 31 2008 96 of children had

timely case plans prepared (Exh A Birdsong Decl at 7) As of November 2008 95 of

children have appropriate goals in their case plans (Court Monitorrsquos January 26 2009

Update at 5) As reported by the Court Monitor ldquoCFSA has made a philosophical shift to

emphasize the Agencyrsquos responsibility to develop plans with families to ensure the safety

permanency and well-being of their childrenrdquo (July 19 2006 Report at 59)

f Services

1991 finding The Court found that the Division ldquoconsistently failed to provide

services once children are removed from their homes and placed in foster carerdquo 762 F

Supp at 974 See DC Code sect 4-130303 (2001 ed 2008 Repl) (requiring CFSA to

maintain and provide treatment and services to families and children where there has been an

abuse or neglect finding) The finding relied upon the Divisionrsquos policy that children

13

entering care undergo a complete medical evaluation prior to placement and that children in

foster care have a monthly face-to-face contact with a social worker Id As of 1989

services were not provided in 77 of cases with a goal of return home (where the children

had entered foster care through voluntary placement) 44 of children did not have a medical

evaluation since entering care and for 64 of children with a plan of return home there was

no evidence that the children had ever been visited by a social worker Id

Present As of December 31 2008 79 of children entering or re-entering care

received a pre-placement medical screening and 87 of the children entering or re-entering

care received a post-placement medical evaluation within 30 days of placement (Exh A

Birdsong Decl at 8-9) The District has also undertaken efforts to improve these numbers

even further See Section C2 infra at 20-22 With regard to social worker visits 96 of the

children in foster care were visited by a social worker at least once and 87 were visited at

least twice in December 2008 (Birdsong Decl at 10) See also July 19 2006 Report at 80

(ldquoCFSA has greatly improved the way in which it supervises placements of children in foster

care CFSA assigns workers to each child and family foster families know their workers and

the level of contact between families and workers has increased substantially since the end of

the Receivershiprdquo)

g Periodic reviews

1991 finding The Court found that the Division consistently failed to provide

ldquoperiodic judicial or administrative reviews for the purpose of determining the continued

need for and appropriateness of placementrdquo 762 F Supp at 974 See DC Code sect 16-2323

(1981 ed) As of December 1989 only 13 of children in foster care received timely

reviews Id

14

Present As of December 31 2008 CFSA timely completed administrative

reviews for 96 of the 2015 children who require administrative reviews (Exh A Birdsong

Decl at 11)

h Adoption

1991 finding The Court found that the Division ldquohas consistently failed to

expedite the progression of the children in its custody toward permanent placement through

adoptionrdquo 762 F Supp at 975 See DC Code sect 6-2123 (1981 ed) (requiring the Division

to prepare a permanent plan for a child who cannot be returned home within a reasonable

time) As of 1989 66 of children with a goal of adoption had not been legally freed for

adoption Id

Present As of February 4 2007 97 of children with a goal of adoption have

had legal action to free them for adoption2 See DC Code sect 16-2323(c)(2) (2001 ed 2008

Supp) (Exh D Reese Decl at para 7)

i Monitoring foster homes and institutions

1991 finding The Court found that the Division ldquoconsistently failed to monitor

foster homes and institutions in accordance with the requirements of District lawrdquo 762 F

Supp at 979 See DC Code sectsect 3-802 3-805 (1981 ed) (requiring facilities providing foster

care to be licensed and inspected annually) In support of this finding the Court noted that

2 The AIP requires that the legal action be taken within 45 days of the goal changing to adoption however the data provided herein reflects legal action taken regardless of the time Also FACES data shows 83 but a manual count shows that 97 of children with a goal of adoption have had legal action taken to free them for adoption The additional 69 children who had legal action were not properly documented in FACES

15

ldquobetween 1988 and July 1990 the Monitoring Unit failed to monitor any of the foster homes

operated by the Consortium for Child Welfare in which District children were placedrdquo Id

Present In 2001 the District enacted a regulatory framework to govern foster

and group homes See generally 29 DCMR sect 6000 et seq 29 DCMR sect 6200 et seq As

of December 31 2008 current licenses existed for 90 of the 1013 foster homes and 74

of the 121 group homes where children are placed (Exh A Birdsong Decl at 12-13) Prior

to receiving a license foster homes and group homes are inspected foster home licenses are

valid for two years and group home licenses are valid for one year See 29 DCMR sect

6030 29 DCMR sect 6210 In addition to the inspections conducted through the licensing

process CFSA conducts monitoring visits of the homes During 2008 congregate care

monitors performed 311 announced and 267 unannounced monitoring visits at group homes

and independent living locations (Exh E Douglas Decl at 4) In August 2008 foster home

monitors visited 410 children in 227 foster homes (Id at 3)

As shown above the District has remedied the host of statutory violations originally

found by the Court The above analysis is not intended to suggest that there is no room for

improvement As also discussed in the next section the District is making appropriate efforts

where improvements can be made See Section C2 infra at 20-22 The above analysis also

does not include additional ldquosystem infrastructurerdquo findings of the Court in 1991 ndash regarding

case tracking caseloads supervision and training ndash which were not based on a specific statutory

requirement and thus cannot be bases for continuation of the consent decree 762 F Supp at

976-79 The subsequent overhaul in system infrastructure is nevertheless addressed as a separate

basis for terminating the consent decree See Section D infra at 22-27 The point here remains

16

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

report of neglect) In April 1990 the Division failed to initiate nearly 50 percent of the

reports received within 24 hours Id at 969 The Division ldquoended each month between July

1989 and May 1990 with an average backlog of approximately 1200 reports for which it had

not completed investigationsrdquo Id

Present Based on December 2008 data CFSA initiated or attempted to initiate

70 of investigations within 24 hours of receipt of a report of abuse or neglect and CFSA

initiated or attempted to initiate 90 of investigations within 48 hours (Exh A Birdsong

Decl at 3) As of December 31 2008 only 42 of 405 investigations (about 10) were open

longer than 30 days (Id at 15) See DC Code sectsect 4-130104(b) 4-130106(a) (2001 ed

2008 Repl) (setting a 30-day timeframe for completing investigations)

b Provision of preventative services

1991 finding The Court found ldquothat defendants have consistently failed to

provide [preventative] services or otherwise use lsquoreasonable effortsrsquo to prevent placementrdquo

762 F Supp at 970 See DC Code sectsect 6-2105 6-2124 (1981 ed) (requiring the Division to

provide services to enable a child for whom a report has been made to remain in the home

unless removal is necessary) In support of this finding the Court noted that the Division did

not have drug treatment services or counseling services for parents with substance abuse or

mental health problems and that it did not have housing or job services for parents with

housing or unemployment problems Id

Present As of December 31 2008 CFSA served 2070 children (or 757 families)

where children have remained home following an investigation (Exh A Birdsong Decl at

5) In addition during the first quarter of fiscal year 2009 CFSA referred 413 cases to the

Healthy FamiliesThriving Communities Collaboratives to provide a range of services

10

including short term crisis services case management services and youth aftercare (Exh B

Abney Decl at 3) See also the Court Monitorrsquos July 19 2006 Report at 22-24 (detailing the

significant enhancements in the amount and type of services offered to children and families

since this lawsuit began)

c Placement Voluntary and emergency care

1991 finding The Court found ldquothat the [Division] consistently failed to

comply with the statutory time limits regarding voluntary and emergency carerdquo 762 F

Supp at 971 See DC Code sect 6-2123(a)(2) (1981 ed) (mandating that ldquowithin 90 days of

taking a child into custody [the Division must] return the child to the home or request the

filing of a neglect petition in the Family Division of the Superior Court of the District of

Columbiardquo) In support of its finding the Court noted that as of April 1988 the District did

not have an accurate listing of children in voluntary placements and that one of the named

plaintiffs was in voluntary care for two-and-a-half years Id

Present In December 2008 there were no children in voluntary placements In

addition CFSA does not have any children in ldquoemergencyrdquo care over 90 days without a

petition to the Family Court (Exh A Birdsong Decl at 6) CFSA has a practice of

petitioning cases whenever a child is removed beyond a five-day hold As reported by the

Court Monitor in July 2006 ldquo[t]he District has eliminated the inappropriate use of emergency

care and instituted appropriate child welfare practice of removing children from their homes

only with the sanction of a court orderrdquo (July 19 2006 Report at 40)

11

d Least restrictive placement

1991 finding The Court found that ldquothe [Division] consistently failed to place

children in the least restrictive placements consistent with their needsrdquo 762 F Supp at 972

See DC Code sect 4-130109 (2001 ed) (requiring Division to provide the least restrictive

placement consistent with a childrsquos needs) The District lacked therapeutic foster homes

foster homes to provide short-term or emergency care and sufficient homes to place babies

who have HIV Id It did not maintain an information system to identify vacancies in foster

and group homes and it allowed children to spend entire days in Division offices while the

social workers attempted to find placements Id

Present CFSA maintains a range of placement options to include short-term

care beds therapeutic placements traditional foster care beds medically fragile foster care

beds and congregate care (Exh C Forbes Decl at 3) The list of foster and congregate care

vacancies is updated daily and the list of contracted foster care vacancies is updated weekly

(Id) No children have stayed overnight in CFSA offices because of a lack of placements

since 2005 (Id) In addition as of December 31 2008 70 of children in care are placed in

family-based settings (Exh A Birdsong Decl at 4) See also July 19 2006 Report at 42

(ldquoThe District has made noteworthy advances in the area of placement of children CFSA

has created a separate placement administration to coordinate all placement requests and to

more expeditiously identify placement resources Treatment foster care is now an option for

children entering placement who need itrdquo)

12

e Case Planning

1991 finding The Court found that the Division ldquofrequently assigns inappropriate

goals to the children in its foster care and consistently fails to prepare written case plans to

enable the children to realize their goalsrdquo 762 F Supp at 973-74 See DC Code sect 6-

2107(b) (1981 ed) (requiring the Division to prepare timely case plans for all children in

foster care) The Court noted that 62 of children with a goal of return home did not have a

written case plan as of December 1989 Id at 973

Present CFSA is required to assure that each child has a case plan and that for

children placed outside the home that the plans are reviewed periodically to determine inter

alia continuing necessity of placement and compliance with the case plan See DC Code

sect 4-130109(d) (e) (2001 ed 2008 Repl) As of December 31 2008 96 of children had

timely case plans prepared (Exh A Birdsong Decl at 7) As of November 2008 95 of

children have appropriate goals in their case plans (Court Monitorrsquos January 26 2009

Update at 5) As reported by the Court Monitor ldquoCFSA has made a philosophical shift to

emphasize the Agencyrsquos responsibility to develop plans with families to ensure the safety

permanency and well-being of their childrenrdquo (July 19 2006 Report at 59)

f Services

1991 finding The Court found that the Division ldquoconsistently failed to provide

services once children are removed from their homes and placed in foster carerdquo 762 F

Supp at 974 See DC Code sect 4-130303 (2001 ed 2008 Repl) (requiring CFSA to

maintain and provide treatment and services to families and children where there has been an

abuse or neglect finding) The finding relied upon the Divisionrsquos policy that children

13

entering care undergo a complete medical evaluation prior to placement and that children in

foster care have a monthly face-to-face contact with a social worker Id As of 1989

services were not provided in 77 of cases with a goal of return home (where the children

had entered foster care through voluntary placement) 44 of children did not have a medical

evaluation since entering care and for 64 of children with a plan of return home there was

no evidence that the children had ever been visited by a social worker Id

Present As of December 31 2008 79 of children entering or re-entering care

received a pre-placement medical screening and 87 of the children entering or re-entering

care received a post-placement medical evaluation within 30 days of placement (Exh A

Birdsong Decl at 8-9) The District has also undertaken efforts to improve these numbers

even further See Section C2 infra at 20-22 With regard to social worker visits 96 of the

children in foster care were visited by a social worker at least once and 87 were visited at

least twice in December 2008 (Birdsong Decl at 10) See also July 19 2006 Report at 80

(ldquoCFSA has greatly improved the way in which it supervises placements of children in foster

care CFSA assigns workers to each child and family foster families know their workers and

the level of contact between families and workers has increased substantially since the end of

the Receivershiprdquo)

g Periodic reviews

1991 finding The Court found that the Division consistently failed to provide

ldquoperiodic judicial or administrative reviews for the purpose of determining the continued

need for and appropriateness of placementrdquo 762 F Supp at 974 See DC Code sect 16-2323

(1981 ed) As of December 1989 only 13 of children in foster care received timely

reviews Id

14

Present As of December 31 2008 CFSA timely completed administrative

reviews for 96 of the 2015 children who require administrative reviews (Exh A Birdsong

Decl at 11)

h Adoption

1991 finding The Court found that the Division ldquohas consistently failed to

expedite the progression of the children in its custody toward permanent placement through

adoptionrdquo 762 F Supp at 975 See DC Code sect 6-2123 (1981 ed) (requiring the Division

to prepare a permanent plan for a child who cannot be returned home within a reasonable

time) As of 1989 66 of children with a goal of adoption had not been legally freed for

adoption Id

Present As of February 4 2007 97 of children with a goal of adoption have

had legal action to free them for adoption2 See DC Code sect 16-2323(c)(2) (2001 ed 2008

Supp) (Exh D Reese Decl at para 7)

i Monitoring foster homes and institutions

1991 finding The Court found that the Division ldquoconsistently failed to monitor

foster homes and institutions in accordance with the requirements of District lawrdquo 762 F

Supp at 979 See DC Code sectsect 3-802 3-805 (1981 ed) (requiring facilities providing foster

care to be licensed and inspected annually) In support of this finding the Court noted that

2 The AIP requires that the legal action be taken within 45 days of the goal changing to adoption however the data provided herein reflects legal action taken regardless of the time Also FACES data shows 83 but a manual count shows that 97 of children with a goal of adoption have had legal action taken to free them for adoption The additional 69 children who had legal action were not properly documented in FACES

15

ldquobetween 1988 and July 1990 the Monitoring Unit failed to monitor any of the foster homes

operated by the Consortium for Child Welfare in which District children were placedrdquo Id

Present In 2001 the District enacted a regulatory framework to govern foster

and group homes See generally 29 DCMR sect 6000 et seq 29 DCMR sect 6200 et seq As

of December 31 2008 current licenses existed for 90 of the 1013 foster homes and 74

of the 121 group homes where children are placed (Exh A Birdsong Decl at 12-13) Prior

to receiving a license foster homes and group homes are inspected foster home licenses are

valid for two years and group home licenses are valid for one year See 29 DCMR sect

6030 29 DCMR sect 6210 In addition to the inspections conducted through the licensing

process CFSA conducts monitoring visits of the homes During 2008 congregate care

monitors performed 311 announced and 267 unannounced monitoring visits at group homes

and independent living locations (Exh E Douglas Decl at 4) In August 2008 foster home

monitors visited 410 children in 227 foster homes (Id at 3)

As shown above the District has remedied the host of statutory violations originally

found by the Court The above analysis is not intended to suggest that there is no room for

improvement As also discussed in the next section the District is making appropriate efforts

where improvements can be made See Section C2 infra at 20-22 The above analysis also

does not include additional ldquosystem infrastructurerdquo findings of the Court in 1991 ndash regarding

case tracking caseloads supervision and training ndash which were not based on a specific statutory

requirement and thus cannot be bases for continuation of the consent decree 762 F Supp at

976-79 The subsequent overhaul in system infrastructure is nevertheless addressed as a separate

basis for terminating the consent decree See Section D infra at 22-27 The point here remains

16

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

including short term crisis services case management services and youth aftercare (Exh B

Abney Decl at 3) See also the Court Monitorrsquos July 19 2006 Report at 22-24 (detailing the

significant enhancements in the amount and type of services offered to children and families

since this lawsuit began)

c Placement Voluntary and emergency care

1991 finding The Court found ldquothat the [Division] consistently failed to

comply with the statutory time limits regarding voluntary and emergency carerdquo 762 F

Supp at 971 See DC Code sect 6-2123(a)(2) (1981 ed) (mandating that ldquowithin 90 days of

taking a child into custody [the Division must] return the child to the home or request the

filing of a neglect petition in the Family Division of the Superior Court of the District of

Columbiardquo) In support of its finding the Court noted that as of April 1988 the District did

not have an accurate listing of children in voluntary placements and that one of the named

plaintiffs was in voluntary care for two-and-a-half years Id

Present In December 2008 there were no children in voluntary placements In

addition CFSA does not have any children in ldquoemergencyrdquo care over 90 days without a

petition to the Family Court (Exh A Birdsong Decl at 6) CFSA has a practice of

petitioning cases whenever a child is removed beyond a five-day hold As reported by the

Court Monitor in July 2006 ldquo[t]he District has eliminated the inappropriate use of emergency

care and instituted appropriate child welfare practice of removing children from their homes

only with the sanction of a court orderrdquo (July 19 2006 Report at 40)

11

d Least restrictive placement

1991 finding The Court found that ldquothe [Division] consistently failed to place

children in the least restrictive placements consistent with their needsrdquo 762 F Supp at 972

See DC Code sect 4-130109 (2001 ed) (requiring Division to provide the least restrictive

placement consistent with a childrsquos needs) The District lacked therapeutic foster homes

foster homes to provide short-term or emergency care and sufficient homes to place babies

who have HIV Id It did not maintain an information system to identify vacancies in foster

and group homes and it allowed children to spend entire days in Division offices while the

social workers attempted to find placements Id

Present CFSA maintains a range of placement options to include short-term

care beds therapeutic placements traditional foster care beds medically fragile foster care

beds and congregate care (Exh C Forbes Decl at 3) The list of foster and congregate care

vacancies is updated daily and the list of contracted foster care vacancies is updated weekly

(Id) No children have stayed overnight in CFSA offices because of a lack of placements

since 2005 (Id) In addition as of December 31 2008 70 of children in care are placed in

family-based settings (Exh A Birdsong Decl at 4) See also July 19 2006 Report at 42

(ldquoThe District has made noteworthy advances in the area of placement of children CFSA

has created a separate placement administration to coordinate all placement requests and to

more expeditiously identify placement resources Treatment foster care is now an option for

children entering placement who need itrdquo)

12

e Case Planning

1991 finding The Court found that the Division ldquofrequently assigns inappropriate

goals to the children in its foster care and consistently fails to prepare written case plans to

enable the children to realize their goalsrdquo 762 F Supp at 973-74 See DC Code sect 6-

2107(b) (1981 ed) (requiring the Division to prepare timely case plans for all children in

foster care) The Court noted that 62 of children with a goal of return home did not have a

written case plan as of December 1989 Id at 973

Present CFSA is required to assure that each child has a case plan and that for

children placed outside the home that the plans are reviewed periodically to determine inter

alia continuing necessity of placement and compliance with the case plan See DC Code

sect 4-130109(d) (e) (2001 ed 2008 Repl) As of December 31 2008 96 of children had

timely case plans prepared (Exh A Birdsong Decl at 7) As of November 2008 95 of

children have appropriate goals in their case plans (Court Monitorrsquos January 26 2009

Update at 5) As reported by the Court Monitor ldquoCFSA has made a philosophical shift to

emphasize the Agencyrsquos responsibility to develop plans with families to ensure the safety

permanency and well-being of their childrenrdquo (July 19 2006 Report at 59)

f Services

1991 finding The Court found that the Division ldquoconsistently failed to provide

services once children are removed from their homes and placed in foster carerdquo 762 F

Supp at 974 See DC Code sect 4-130303 (2001 ed 2008 Repl) (requiring CFSA to

maintain and provide treatment and services to families and children where there has been an

abuse or neglect finding) The finding relied upon the Divisionrsquos policy that children

13

entering care undergo a complete medical evaluation prior to placement and that children in

foster care have a monthly face-to-face contact with a social worker Id As of 1989

services were not provided in 77 of cases with a goal of return home (where the children

had entered foster care through voluntary placement) 44 of children did not have a medical

evaluation since entering care and for 64 of children with a plan of return home there was

no evidence that the children had ever been visited by a social worker Id

Present As of December 31 2008 79 of children entering or re-entering care

received a pre-placement medical screening and 87 of the children entering or re-entering

care received a post-placement medical evaluation within 30 days of placement (Exh A

Birdsong Decl at 8-9) The District has also undertaken efforts to improve these numbers

even further See Section C2 infra at 20-22 With regard to social worker visits 96 of the

children in foster care were visited by a social worker at least once and 87 were visited at

least twice in December 2008 (Birdsong Decl at 10) See also July 19 2006 Report at 80

(ldquoCFSA has greatly improved the way in which it supervises placements of children in foster

care CFSA assigns workers to each child and family foster families know their workers and

the level of contact between families and workers has increased substantially since the end of

the Receivershiprdquo)

g Periodic reviews

1991 finding The Court found that the Division consistently failed to provide

ldquoperiodic judicial or administrative reviews for the purpose of determining the continued

need for and appropriateness of placementrdquo 762 F Supp at 974 See DC Code sect 16-2323

(1981 ed) As of December 1989 only 13 of children in foster care received timely

reviews Id

14

Present As of December 31 2008 CFSA timely completed administrative

reviews for 96 of the 2015 children who require administrative reviews (Exh A Birdsong

Decl at 11)

h Adoption

1991 finding The Court found that the Division ldquohas consistently failed to

expedite the progression of the children in its custody toward permanent placement through

adoptionrdquo 762 F Supp at 975 See DC Code sect 6-2123 (1981 ed) (requiring the Division

to prepare a permanent plan for a child who cannot be returned home within a reasonable

time) As of 1989 66 of children with a goal of adoption had not been legally freed for

adoption Id

Present As of February 4 2007 97 of children with a goal of adoption have

had legal action to free them for adoption2 See DC Code sect 16-2323(c)(2) (2001 ed 2008

Supp) (Exh D Reese Decl at para 7)

i Monitoring foster homes and institutions

1991 finding The Court found that the Division ldquoconsistently failed to monitor

foster homes and institutions in accordance with the requirements of District lawrdquo 762 F

Supp at 979 See DC Code sectsect 3-802 3-805 (1981 ed) (requiring facilities providing foster

care to be licensed and inspected annually) In support of this finding the Court noted that

2 The AIP requires that the legal action be taken within 45 days of the goal changing to adoption however the data provided herein reflects legal action taken regardless of the time Also FACES data shows 83 but a manual count shows that 97 of children with a goal of adoption have had legal action taken to free them for adoption The additional 69 children who had legal action were not properly documented in FACES

15

ldquobetween 1988 and July 1990 the Monitoring Unit failed to monitor any of the foster homes

operated by the Consortium for Child Welfare in which District children were placedrdquo Id

Present In 2001 the District enacted a regulatory framework to govern foster

and group homes See generally 29 DCMR sect 6000 et seq 29 DCMR sect 6200 et seq As

of December 31 2008 current licenses existed for 90 of the 1013 foster homes and 74

of the 121 group homes where children are placed (Exh A Birdsong Decl at 12-13) Prior

to receiving a license foster homes and group homes are inspected foster home licenses are

valid for two years and group home licenses are valid for one year See 29 DCMR sect

6030 29 DCMR sect 6210 In addition to the inspections conducted through the licensing

process CFSA conducts monitoring visits of the homes During 2008 congregate care

monitors performed 311 announced and 267 unannounced monitoring visits at group homes

and independent living locations (Exh E Douglas Decl at 4) In August 2008 foster home

monitors visited 410 children in 227 foster homes (Id at 3)

As shown above the District has remedied the host of statutory violations originally

found by the Court The above analysis is not intended to suggest that there is no room for

improvement As also discussed in the next section the District is making appropriate efforts

where improvements can be made See Section C2 infra at 20-22 The above analysis also

does not include additional ldquosystem infrastructurerdquo findings of the Court in 1991 ndash regarding

case tracking caseloads supervision and training ndash which were not based on a specific statutory

requirement and thus cannot be bases for continuation of the consent decree 762 F Supp at

976-79 The subsequent overhaul in system infrastructure is nevertheless addressed as a separate

basis for terminating the consent decree See Section D infra at 22-27 The point here remains

16

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

d Least restrictive placement

1991 finding The Court found that ldquothe [Division] consistently failed to place

children in the least restrictive placements consistent with their needsrdquo 762 F Supp at 972

See DC Code sect 4-130109 (2001 ed) (requiring Division to provide the least restrictive

placement consistent with a childrsquos needs) The District lacked therapeutic foster homes

foster homes to provide short-term or emergency care and sufficient homes to place babies

who have HIV Id It did not maintain an information system to identify vacancies in foster

and group homes and it allowed children to spend entire days in Division offices while the

social workers attempted to find placements Id

Present CFSA maintains a range of placement options to include short-term

care beds therapeutic placements traditional foster care beds medically fragile foster care

beds and congregate care (Exh C Forbes Decl at 3) The list of foster and congregate care

vacancies is updated daily and the list of contracted foster care vacancies is updated weekly

(Id) No children have stayed overnight in CFSA offices because of a lack of placements

since 2005 (Id) In addition as of December 31 2008 70 of children in care are placed in

family-based settings (Exh A Birdsong Decl at 4) See also July 19 2006 Report at 42

(ldquoThe District has made noteworthy advances in the area of placement of children CFSA

has created a separate placement administration to coordinate all placement requests and to

more expeditiously identify placement resources Treatment foster care is now an option for

children entering placement who need itrdquo)

12

e Case Planning

1991 finding The Court found that the Division ldquofrequently assigns inappropriate

goals to the children in its foster care and consistently fails to prepare written case plans to

enable the children to realize their goalsrdquo 762 F Supp at 973-74 See DC Code sect 6-

2107(b) (1981 ed) (requiring the Division to prepare timely case plans for all children in

foster care) The Court noted that 62 of children with a goal of return home did not have a

written case plan as of December 1989 Id at 973

Present CFSA is required to assure that each child has a case plan and that for

children placed outside the home that the plans are reviewed periodically to determine inter

alia continuing necessity of placement and compliance with the case plan See DC Code

sect 4-130109(d) (e) (2001 ed 2008 Repl) As of December 31 2008 96 of children had

timely case plans prepared (Exh A Birdsong Decl at 7) As of November 2008 95 of

children have appropriate goals in their case plans (Court Monitorrsquos January 26 2009

Update at 5) As reported by the Court Monitor ldquoCFSA has made a philosophical shift to

emphasize the Agencyrsquos responsibility to develop plans with families to ensure the safety

permanency and well-being of their childrenrdquo (July 19 2006 Report at 59)

f Services

1991 finding The Court found that the Division ldquoconsistently failed to provide

services once children are removed from their homes and placed in foster carerdquo 762 F

Supp at 974 See DC Code sect 4-130303 (2001 ed 2008 Repl) (requiring CFSA to

maintain and provide treatment and services to families and children where there has been an

abuse or neglect finding) The finding relied upon the Divisionrsquos policy that children

13

entering care undergo a complete medical evaluation prior to placement and that children in

foster care have a monthly face-to-face contact with a social worker Id As of 1989

services were not provided in 77 of cases with a goal of return home (where the children

had entered foster care through voluntary placement) 44 of children did not have a medical

evaluation since entering care and for 64 of children with a plan of return home there was

no evidence that the children had ever been visited by a social worker Id

Present As of December 31 2008 79 of children entering or re-entering care

received a pre-placement medical screening and 87 of the children entering or re-entering

care received a post-placement medical evaluation within 30 days of placement (Exh A

Birdsong Decl at 8-9) The District has also undertaken efforts to improve these numbers

even further See Section C2 infra at 20-22 With regard to social worker visits 96 of the

children in foster care were visited by a social worker at least once and 87 were visited at

least twice in December 2008 (Birdsong Decl at 10) See also July 19 2006 Report at 80

(ldquoCFSA has greatly improved the way in which it supervises placements of children in foster

care CFSA assigns workers to each child and family foster families know their workers and

the level of contact between families and workers has increased substantially since the end of

the Receivershiprdquo)

g Periodic reviews

1991 finding The Court found that the Division consistently failed to provide

ldquoperiodic judicial or administrative reviews for the purpose of determining the continued

need for and appropriateness of placementrdquo 762 F Supp at 974 See DC Code sect 16-2323

(1981 ed) As of December 1989 only 13 of children in foster care received timely

reviews Id

14

Present As of December 31 2008 CFSA timely completed administrative

reviews for 96 of the 2015 children who require administrative reviews (Exh A Birdsong

Decl at 11)

h Adoption

1991 finding The Court found that the Division ldquohas consistently failed to

expedite the progression of the children in its custody toward permanent placement through

adoptionrdquo 762 F Supp at 975 See DC Code sect 6-2123 (1981 ed) (requiring the Division

to prepare a permanent plan for a child who cannot be returned home within a reasonable

time) As of 1989 66 of children with a goal of adoption had not been legally freed for

adoption Id

Present As of February 4 2007 97 of children with a goal of adoption have

had legal action to free them for adoption2 See DC Code sect 16-2323(c)(2) (2001 ed 2008

Supp) (Exh D Reese Decl at para 7)

i Monitoring foster homes and institutions

1991 finding The Court found that the Division ldquoconsistently failed to monitor

foster homes and institutions in accordance with the requirements of District lawrdquo 762 F

Supp at 979 See DC Code sectsect 3-802 3-805 (1981 ed) (requiring facilities providing foster

care to be licensed and inspected annually) In support of this finding the Court noted that

2 The AIP requires that the legal action be taken within 45 days of the goal changing to adoption however the data provided herein reflects legal action taken regardless of the time Also FACES data shows 83 but a manual count shows that 97 of children with a goal of adoption have had legal action taken to free them for adoption The additional 69 children who had legal action were not properly documented in FACES

15

ldquobetween 1988 and July 1990 the Monitoring Unit failed to monitor any of the foster homes

operated by the Consortium for Child Welfare in which District children were placedrdquo Id

Present In 2001 the District enacted a regulatory framework to govern foster

and group homes See generally 29 DCMR sect 6000 et seq 29 DCMR sect 6200 et seq As

of December 31 2008 current licenses existed for 90 of the 1013 foster homes and 74

of the 121 group homes where children are placed (Exh A Birdsong Decl at 12-13) Prior

to receiving a license foster homes and group homes are inspected foster home licenses are

valid for two years and group home licenses are valid for one year See 29 DCMR sect

6030 29 DCMR sect 6210 In addition to the inspections conducted through the licensing

process CFSA conducts monitoring visits of the homes During 2008 congregate care

monitors performed 311 announced and 267 unannounced monitoring visits at group homes

and independent living locations (Exh E Douglas Decl at 4) In August 2008 foster home

monitors visited 410 children in 227 foster homes (Id at 3)

As shown above the District has remedied the host of statutory violations originally

found by the Court The above analysis is not intended to suggest that there is no room for

improvement As also discussed in the next section the District is making appropriate efforts

where improvements can be made See Section C2 infra at 20-22 The above analysis also

does not include additional ldquosystem infrastructurerdquo findings of the Court in 1991 ndash regarding

case tracking caseloads supervision and training ndash which were not based on a specific statutory

requirement and thus cannot be bases for continuation of the consent decree 762 F Supp at

976-79 The subsequent overhaul in system infrastructure is nevertheless addressed as a separate

basis for terminating the consent decree See Section D infra at 22-27 The point here remains

16

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

e Case Planning

1991 finding The Court found that the Division ldquofrequently assigns inappropriate

goals to the children in its foster care and consistently fails to prepare written case plans to

enable the children to realize their goalsrdquo 762 F Supp at 973-74 See DC Code sect 6-

2107(b) (1981 ed) (requiring the Division to prepare timely case plans for all children in

foster care) The Court noted that 62 of children with a goal of return home did not have a

written case plan as of December 1989 Id at 973

Present CFSA is required to assure that each child has a case plan and that for

children placed outside the home that the plans are reviewed periodically to determine inter

alia continuing necessity of placement and compliance with the case plan See DC Code

sect 4-130109(d) (e) (2001 ed 2008 Repl) As of December 31 2008 96 of children had

timely case plans prepared (Exh A Birdsong Decl at 7) As of November 2008 95 of

children have appropriate goals in their case plans (Court Monitorrsquos January 26 2009

Update at 5) As reported by the Court Monitor ldquoCFSA has made a philosophical shift to

emphasize the Agencyrsquos responsibility to develop plans with families to ensure the safety

permanency and well-being of their childrenrdquo (July 19 2006 Report at 59)

f Services

1991 finding The Court found that the Division ldquoconsistently failed to provide

services once children are removed from their homes and placed in foster carerdquo 762 F

Supp at 974 See DC Code sect 4-130303 (2001 ed 2008 Repl) (requiring CFSA to

maintain and provide treatment and services to families and children where there has been an

abuse or neglect finding) The finding relied upon the Divisionrsquos policy that children

13

entering care undergo a complete medical evaluation prior to placement and that children in

foster care have a monthly face-to-face contact with a social worker Id As of 1989

services were not provided in 77 of cases with a goal of return home (where the children

had entered foster care through voluntary placement) 44 of children did not have a medical

evaluation since entering care and for 64 of children with a plan of return home there was

no evidence that the children had ever been visited by a social worker Id

Present As of December 31 2008 79 of children entering or re-entering care

received a pre-placement medical screening and 87 of the children entering or re-entering

care received a post-placement medical evaluation within 30 days of placement (Exh A

Birdsong Decl at 8-9) The District has also undertaken efforts to improve these numbers

even further See Section C2 infra at 20-22 With regard to social worker visits 96 of the

children in foster care were visited by a social worker at least once and 87 were visited at

least twice in December 2008 (Birdsong Decl at 10) See also July 19 2006 Report at 80

(ldquoCFSA has greatly improved the way in which it supervises placements of children in foster

care CFSA assigns workers to each child and family foster families know their workers and

the level of contact between families and workers has increased substantially since the end of

the Receivershiprdquo)

g Periodic reviews

1991 finding The Court found that the Division consistently failed to provide

ldquoperiodic judicial or administrative reviews for the purpose of determining the continued

need for and appropriateness of placementrdquo 762 F Supp at 974 See DC Code sect 16-2323

(1981 ed) As of December 1989 only 13 of children in foster care received timely

reviews Id

14

Present As of December 31 2008 CFSA timely completed administrative

reviews for 96 of the 2015 children who require administrative reviews (Exh A Birdsong

Decl at 11)

h Adoption

1991 finding The Court found that the Division ldquohas consistently failed to

expedite the progression of the children in its custody toward permanent placement through

adoptionrdquo 762 F Supp at 975 See DC Code sect 6-2123 (1981 ed) (requiring the Division

to prepare a permanent plan for a child who cannot be returned home within a reasonable

time) As of 1989 66 of children with a goal of adoption had not been legally freed for

adoption Id

Present As of February 4 2007 97 of children with a goal of adoption have

had legal action to free them for adoption2 See DC Code sect 16-2323(c)(2) (2001 ed 2008

Supp) (Exh D Reese Decl at para 7)

i Monitoring foster homes and institutions

1991 finding The Court found that the Division ldquoconsistently failed to monitor

foster homes and institutions in accordance with the requirements of District lawrdquo 762 F

Supp at 979 See DC Code sectsect 3-802 3-805 (1981 ed) (requiring facilities providing foster

care to be licensed and inspected annually) In support of this finding the Court noted that

2 The AIP requires that the legal action be taken within 45 days of the goal changing to adoption however the data provided herein reflects legal action taken regardless of the time Also FACES data shows 83 but a manual count shows that 97 of children with a goal of adoption have had legal action taken to free them for adoption The additional 69 children who had legal action were not properly documented in FACES

15

ldquobetween 1988 and July 1990 the Monitoring Unit failed to monitor any of the foster homes

operated by the Consortium for Child Welfare in which District children were placedrdquo Id

Present In 2001 the District enacted a regulatory framework to govern foster

and group homes See generally 29 DCMR sect 6000 et seq 29 DCMR sect 6200 et seq As

of December 31 2008 current licenses existed for 90 of the 1013 foster homes and 74

of the 121 group homes where children are placed (Exh A Birdsong Decl at 12-13) Prior

to receiving a license foster homes and group homes are inspected foster home licenses are

valid for two years and group home licenses are valid for one year See 29 DCMR sect

6030 29 DCMR sect 6210 In addition to the inspections conducted through the licensing

process CFSA conducts monitoring visits of the homes During 2008 congregate care

monitors performed 311 announced and 267 unannounced monitoring visits at group homes

and independent living locations (Exh E Douglas Decl at 4) In August 2008 foster home

monitors visited 410 children in 227 foster homes (Id at 3)

As shown above the District has remedied the host of statutory violations originally

found by the Court The above analysis is not intended to suggest that there is no room for

improvement As also discussed in the next section the District is making appropriate efforts

where improvements can be made See Section C2 infra at 20-22 The above analysis also

does not include additional ldquosystem infrastructurerdquo findings of the Court in 1991 ndash regarding

case tracking caseloads supervision and training ndash which were not based on a specific statutory

requirement and thus cannot be bases for continuation of the consent decree 762 F Supp at

976-79 The subsequent overhaul in system infrastructure is nevertheless addressed as a separate

basis for terminating the consent decree See Section D infra at 22-27 The point here remains

16

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

entering care undergo a complete medical evaluation prior to placement and that children in

foster care have a monthly face-to-face contact with a social worker Id As of 1989

services were not provided in 77 of cases with a goal of return home (where the children

had entered foster care through voluntary placement) 44 of children did not have a medical

evaluation since entering care and for 64 of children with a plan of return home there was

no evidence that the children had ever been visited by a social worker Id

Present As of December 31 2008 79 of children entering or re-entering care

received a pre-placement medical screening and 87 of the children entering or re-entering

care received a post-placement medical evaluation within 30 days of placement (Exh A

Birdsong Decl at 8-9) The District has also undertaken efforts to improve these numbers

even further See Section C2 infra at 20-22 With regard to social worker visits 96 of the

children in foster care were visited by a social worker at least once and 87 were visited at

least twice in December 2008 (Birdsong Decl at 10) See also July 19 2006 Report at 80

(ldquoCFSA has greatly improved the way in which it supervises placements of children in foster

care CFSA assigns workers to each child and family foster families know their workers and

the level of contact between families and workers has increased substantially since the end of

the Receivershiprdquo)

g Periodic reviews

1991 finding The Court found that the Division consistently failed to provide

ldquoperiodic judicial or administrative reviews for the purpose of determining the continued

need for and appropriateness of placementrdquo 762 F Supp at 974 See DC Code sect 16-2323

(1981 ed) As of December 1989 only 13 of children in foster care received timely

reviews Id

14

Present As of December 31 2008 CFSA timely completed administrative

reviews for 96 of the 2015 children who require administrative reviews (Exh A Birdsong

Decl at 11)

h Adoption

1991 finding The Court found that the Division ldquohas consistently failed to

expedite the progression of the children in its custody toward permanent placement through

adoptionrdquo 762 F Supp at 975 See DC Code sect 6-2123 (1981 ed) (requiring the Division

to prepare a permanent plan for a child who cannot be returned home within a reasonable

time) As of 1989 66 of children with a goal of adoption had not been legally freed for

adoption Id

Present As of February 4 2007 97 of children with a goal of adoption have

had legal action to free them for adoption2 See DC Code sect 16-2323(c)(2) (2001 ed 2008

Supp) (Exh D Reese Decl at para 7)

i Monitoring foster homes and institutions

1991 finding The Court found that the Division ldquoconsistently failed to monitor

foster homes and institutions in accordance with the requirements of District lawrdquo 762 F

Supp at 979 See DC Code sectsect 3-802 3-805 (1981 ed) (requiring facilities providing foster

care to be licensed and inspected annually) In support of this finding the Court noted that

2 The AIP requires that the legal action be taken within 45 days of the goal changing to adoption however the data provided herein reflects legal action taken regardless of the time Also FACES data shows 83 but a manual count shows that 97 of children with a goal of adoption have had legal action taken to free them for adoption The additional 69 children who had legal action were not properly documented in FACES

15

ldquobetween 1988 and July 1990 the Monitoring Unit failed to monitor any of the foster homes

operated by the Consortium for Child Welfare in which District children were placedrdquo Id

Present In 2001 the District enacted a regulatory framework to govern foster

and group homes See generally 29 DCMR sect 6000 et seq 29 DCMR sect 6200 et seq As

of December 31 2008 current licenses existed for 90 of the 1013 foster homes and 74

of the 121 group homes where children are placed (Exh A Birdsong Decl at 12-13) Prior

to receiving a license foster homes and group homes are inspected foster home licenses are

valid for two years and group home licenses are valid for one year See 29 DCMR sect

6030 29 DCMR sect 6210 In addition to the inspections conducted through the licensing

process CFSA conducts monitoring visits of the homes During 2008 congregate care

monitors performed 311 announced and 267 unannounced monitoring visits at group homes

and independent living locations (Exh E Douglas Decl at 4) In August 2008 foster home

monitors visited 410 children in 227 foster homes (Id at 3)

As shown above the District has remedied the host of statutory violations originally

found by the Court The above analysis is not intended to suggest that there is no room for

improvement As also discussed in the next section the District is making appropriate efforts

where improvements can be made See Section C2 infra at 20-22 The above analysis also

does not include additional ldquosystem infrastructurerdquo findings of the Court in 1991 ndash regarding

case tracking caseloads supervision and training ndash which were not based on a specific statutory

requirement and thus cannot be bases for continuation of the consent decree 762 F Supp at

976-79 The subsequent overhaul in system infrastructure is nevertheless addressed as a separate

basis for terminating the consent decree See Section D infra at 22-27 The point here remains

16

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

Present As of December 31 2008 CFSA timely completed administrative

reviews for 96 of the 2015 children who require administrative reviews (Exh A Birdsong

Decl at 11)

h Adoption

1991 finding The Court found that the Division ldquohas consistently failed to

expedite the progression of the children in its custody toward permanent placement through

adoptionrdquo 762 F Supp at 975 See DC Code sect 6-2123 (1981 ed) (requiring the Division

to prepare a permanent plan for a child who cannot be returned home within a reasonable

time) As of 1989 66 of children with a goal of adoption had not been legally freed for

adoption Id

Present As of February 4 2007 97 of children with a goal of adoption have

had legal action to free them for adoption2 See DC Code sect 16-2323(c)(2) (2001 ed 2008

Supp) (Exh D Reese Decl at para 7)

i Monitoring foster homes and institutions

1991 finding The Court found that the Division ldquoconsistently failed to monitor

foster homes and institutions in accordance with the requirements of District lawrdquo 762 F

Supp at 979 See DC Code sectsect 3-802 3-805 (1981 ed) (requiring facilities providing foster

care to be licensed and inspected annually) In support of this finding the Court noted that

2 The AIP requires that the legal action be taken within 45 days of the goal changing to adoption however the data provided herein reflects legal action taken regardless of the time Also FACES data shows 83 but a manual count shows that 97 of children with a goal of adoption have had legal action taken to free them for adoption The additional 69 children who had legal action were not properly documented in FACES

15

ldquobetween 1988 and July 1990 the Monitoring Unit failed to monitor any of the foster homes

operated by the Consortium for Child Welfare in which District children were placedrdquo Id

Present In 2001 the District enacted a regulatory framework to govern foster

and group homes See generally 29 DCMR sect 6000 et seq 29 DCMR sect 6200 et seq As

of December 31 2008 current licenses existed for 90 of the 1013 foster homes and 74

of the 121 group homes where children are placed (Exh A Birdsong Decl at 12-13) Prior

to receiving a license foster homes and group homes are inspected foster home licenses are

valid for two years and group home licenses are valid for one year See 29 DCMR sect

6030 29 DCMR sect 6210 In addition to the inspections conducted through the licensing

process CFSA conducts monitoring visits of the homes During 2008 congregate care

monitors performed 311 announced and 267 unannounced monitoring visits at group homes

and independent living locations (Exh E Douglas Decl at 4) In August 2008 foster home

monitors visited 410 children in 227 foster homes (Id at 3)

As shown above the District has remedied the host of statutory violations originally

found by the Court The above analysis is not intended to suggest that there is no room for

improvement As also discussed in the next section the District is making appropriate efforts

where improvements can be made See Section C2 infra at 20-22 The above analysis also

does not include additional ldquosystem infrastructurerdquo findings of the Court in 1991 ndash regarding

case tracking caseloads supervision and training ndash which were not based on a specific statutory

requirement and thus cannot be bases for continuation of the consent decree 762 F Supp at

976-79 The subsequent overhaul in system infrastructure is nevertheless addressed as a separate

basis for terminating the consent decree See Section D infra at 22-27 The point here remains

16

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

ldquobetween 1988 and July 1990 the Monitoring Unit failed to monitor any of the foster homes

operated by the Consortium for Child Welfare in which District children were placedrdquo Id

Present In 2001 the District enacted a regulatory framework to govern foster

and group homes See generally 29 DCMR sect 6000 et seq 29 DCMR sect 6200 et seq As

of December 31 2008 current licenses existed for 90 of the 1013 foster homes and 74

of the 121 group homes where children are placed (Exh A Birdsong Decl at 12-13) Prior

to receiving a license foster homes and group homes are inspected foster home licenses are

valid for two years and group home licenses are valid for one year See 29 DCMR sect

6030 29 DCMR sect 6210 In addition to the inspections conducted through the licensing

process CFSA conducts monitoring visits of the homes During 2008 congregate care

monitors performed 311 announced and 267 unannounced monitoring visits at group homes

and independent living locations (Exh E Douglas Decl at 4) In August 2008 foster home

monitors visited 410 children in 227 foster homes (Id at 3)

As shown above the District has remedied the host of statutory violations originally

found by the Court The above analysis is not intended to suggest that there is no room for

improvement As also discussed in the next section the District is making appropriate efforts

where improvements can be made See Section C2 infra at 20-22 The above analysis also

does not include additional ldquosystem infrastructurerdquo findings of the Court in 1991 ndash regarding

case tracking caseloads supervision and training ndash which were not based on a specific statutory

requirement and thus cannot be bases for continuation of the consent decree 762 F Supp at

976-79 The subsequent overhaul in system infrastructure is nevertheless addressed as a separate

basis for terminating the consent decree See Section D infra at 22-27 The point here remains

16

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

that the consent decreersquos basic purpose of correcting the original systemic violations of law has

been attained

C The District Has Demonstrated Substantial Good Faith Compliance with the Decree for a Reasonable Period of Time

The Districtrsquos substantial good faith compliance with the decree is further grounds for

terminating the decree The ldquopassage of time enables the district court to observe the good faith

of the [local government] in complying with the decreerdquo Dowell 498 US at 249 Dissolving a

decree ldquoafter local authorities have operated in compliance with it for a reasonable period of time

properly recognizes that necessary concern for the important value of local controlrdquo of local

agencies Id at 248 (internal quotes omitted) The termination of the decree following such

period of compliance also fulfills the dictate that ldquoa federal courtrsquos regulatory control of such

[local agencies] not extend beyond the time required to remedyrdquo the violations of law Id

(internal quotes omitted)

1 Since the termination of the Receivership the District has shown substantial good faith compliance

The District has substantially complied in good faith with Court Orders since the

transition from the Receivership Substantial compliance is the appropriate measure RC v

Walley 390 F Supp 2d 1030 1044 (MD Ala 2005) The touchstone of the substantial

compliance inquiry is whether the defendant ldquofrustrated the purpose of the consent decree ndash ie

its essential requirementsrdquo Id It is not ldquoexact compliancerdquo or ldquoperfectionrdquo Id accord

McDonald 109 F3d at 1322 (excusing ldquoshortfalls in the statersquos compliance with the decreersquos

provisionsrdquo in affirming the termination of the decree)

17

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

Beginning with the requirements set forth in the October 23 2000 Consent Order the

District has consistently demonstrated good faith compliance with its Court ordered obligations

The October 23 2000 Order set forth specific requirements to terminate the Receivership Those

obligations included enacting legislation to end the bifurcated abuse and neglect systems

creating the Child and Families Services Agency as a cabinet level agency with independent

personnel and contracting authority enacting a regulatory process for the licensure of foster and

group homes and hiring a new director and a new management team See October 23 2000

Order para 14 The District met each of these requirements and the Receivership was terminated

on July 15 2001 See May 22 2001 Consent Order

A probationary period commenced after the termination of the Receivership during

which the District was required to meet certain performance standards See Appendix A

October 23 2000 Order The obligations included increasing (1) the number of cases with a

current case plan (2) the number of children receiving an administrative review and (3) social

worker visitation Again the District met its obligations and the probationary period ended on

January 6 2003 See January 6 2003 Order

As required by the October 23 2000 Order the Court Monitor developed a full

implementation plan (IP) with considerable input from both plaintiffs and defendants The IP

was approved by the Court on May 15 2003 Reflecting an ambitious and aggressive process of

child welfare reform the IP was structured with interim benchmarks and key strategies to be

accomplished at six-month intervals Specifically the IP included 81 discrete outcomes with an

aggregate of 60 subparts and 76 key strategies not including subparts3 The District again

3 The District filed objections to the prescriptive structure of the IP as well as to the quantitative benchmarks required to achieve ldquofullrdquo compliance Many of the IPrsquos quantitative benchmarks mandate performance at ninety percent or higher which is an unrealistic level of compliance and is beyond any compliance level that can be mandated by law

18

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

demonstrated good faith compliance with the terms of the IP by increasing its level of

performance in almost every requirement of the IP and by December 2006 achieving

compliance with many of the benchmarks and strategies (Court Monitorrsquos Report dated July

19 2006)

Where certain requirements of the IP were not achieved the parties agreed to develop an

Amended Implementation Plan (AIP) approved by the Court on February 27 2007 The

structure of the AIP differed from the IP in many respects The AIP includes two significant

sections outcomes to be achieved and outcomes to be maintained The former reflects IP

outcomes where the District made progress during the duration of the IP but did not meet the

benchmark prescribed4 The latter reflects the benchmarks that the District achieved during the

duration of the IP The terms of the AIP remain in effect until June 30 2009 As reflected in the

Court Monitorrsquos Reports the District continues to make progress with the outcomes to be

achieved (Court Monitorrsquos January 6 2009 Update)

In 2008 CFSA was simultaneously struck with an unprecedented and dramatic increase

in reports of abuse and neglect and a higher than usual staff turnover CFSA responded to try to

ensure its ongoing obligations were met On October 7 2008 the parties with court approval

entered a Stipulated Order which contained actions required by the District between October 15

and December 31 2008 to address the impact of the increased reports and staff vacancies

Again the District demonstrated compliance with this Courtrsquos Orders by meeting or exceeding

each requirement of the Stipulated Order (Court Monitorrsquos January 5 2009 Report)

4 Again the District reserved its objections to the quantitative benchmarks prescribed in the AIP

19

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

2 CFSA is making appropriate efforts in the few areas where its performance can be improved

While each provision of the AIP has not yet been met CFSA is working to improve its

performance as described below

a Placement Stability

The Court Monitorrsquos January 26 2009 Update on compliance with the AIP

indicates that CFSA is about 15-20 below the targeted benchmark for the goal of reducing

multiple placements The Districtrsquos proposed six-month plan with addendum includes

significant action steps aimed at reducing multiple placements for children in care and to

ensure that children are placed in appropriate settings Recently CFSA added 90 new

placements during the next six months CFSA will be reviewing its placement pool and

population and will make any changes to its placement pool as needed In addition the

proposed six-month plan includes specific targets for preventing placements of young

children in congregate settings and addresses strategies for reducing multiple placements for

children To achieve these goals CFSA is committed to making the first placement the best

placement for each child in care

b Permanency

The Court Monitorrsquos January 26 2009 Update indicates that CFSA has not achieved

certain benchmarks related to permanency and adoption During the last three months of

2008 CFSA entered into an agreement with a private agency to provide adoption services

During the next six months CFSA is continuing to work with this contractor to move

specific children toward permanency In addition CFSA is reviewing children with a goal of

20

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

APPLA to ensure that APPLA is an appropriate permanency goal and where it is not to

identify steps needed to achieve permanency

c Medical and Dental Services

While the Court Monitor has historically cited CFSA for not completing the pre-

placement medical screening and post-placement medical and dental evaluations CFSA

made great strides in the last three months to improve its performance on these AIP

benchmarks In November 2008 87 of children entering or re-entering care received a pre-

placement medical screening (Courtrsquos Monitorrsquos January 26 2009 Update at 11) As set

forth in the Districtrsquos proposed six-month plan CFSA is committed to maintaining this high

level of performance In addition CFSA has made great strides in providing medical

evaluations within 30 days of placement In November 2008 79 of children received the

post- placement medical evaluation within 30 days (Courtrsquos Monitorrsquos January 26 2009

Update at 11) CFSA is committed to maintaining this increased level of performance during

the next six months but is also committed to ensuring that 95 of the children will receive

the evaluation within 60 days of placement Similarly CFSA is committed to increasing the

number of children who receive dental evaluations and the six-month plan includes specific

targets to ensure that 55 of the children entering care will receive a dental evaluation within

90 days of placement

Plaintiffsrsquo latest response to the Districtrsquos good faith efforts has been to file a renewed

contempt motion The motion reveals the unwillingness of plaintiffsrsquo counsel to recognize the

significant accomplishments since 1991 It also demonstrates their intent to operate this consent

decree into virtual perpetuity Proof that the Districtrsquos efforts will never satisfy plaintiffsrsquo

21

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

counsel also appears in published statements which reveal deeply biased and stereotypical views

of child welfare administrators For example plaintiffsrsquo counsel states that ldquopeople who provide

child welfare services in this country are not able to hold more than one idea in their head at

the same timerdquo Marcia Lowery Foster Care and Adoption Reform Legislation 14 St Johnrsquos J

Legal Comment 447 448 (2000) Counsel also states that ldquopeople who run child welfare

systems cannot be left to their own devices [because] they do have to be told lsquofirst you put your

left foot in front of your right foot then you put your right foot in front of your left foot then you

do it againrsquordquo Id at 453 Such unfair and degrading generalizations might never permit plaintiffs

to acknowledge the Districtrsquos compliance sufficient to end this consent decree

Accordingly defendants ask this Court to recognize the Districtrsquos substantial good faith

compliance as grounds for initiating the consent decreersquos termination

D The Requirements of the Consent Decree Are No Longer Appropriate Given Changed Circumstances

Changed circumstances also warrant the end of the consent decree In institutional

reform cases district courts are well empowered to modify consent decrees based on changed

circumstances Rufo 502 US at 393 Judicial experience with institutional reform litigation

ldquohas made the ability of a district court to modify a decree in response to changed circumstances

all the more importantrdquo Id As the Supreme Court has observed ldquothe public interest is a

particularly significant reason for applying a flexible modification standard in institutional

reform litigation because such decrees reach beyond the parties involved directly in the suit and

impact on the publicrsquos right to the sound and efficient operation of its institutionsrdquo Id (internal

quotes omitted)

22

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

In fact it has always been true that the ldquocontinuation of an injunction is justified only by

continuation of the circumstances which induced itrdquo In Re Pearson 990 F2d 653 658 (1st Cir

1993) ldquoThis must mean that the district court is not doomed to some Sisyphean fate bound

forever to enforce and interpret a preexisting decree without occasionally pausing to question

whether changing circumstances have rendered the decree unnecessary outmoded or even

harmful to the public interestrdquo Id

The ldquolength of time the consent decree has been in effectrdquo is a factor supporting

termination of a consent decree McDonald 109 F3d at 1321 This is because changed

circumstances are likely when a consent decree has remained in effect for a long time See Rufo

502 US at 380 (ldquoBecause such decrees often remain in place for extended periods of time the

likelihood of significant changes occurring during the life of the decree is increasedrdquo)

Consideration of the consent decreersquos duration also upholds the Supreme Courtrsquos dictate that

consent decrees in institutional reform cases ldquoare not intended to operate in perpetuityrdquo and

cannot condemn an agency ldquoto judicial tutelage for the indefinite futurerdquo Dowell 498 US at

248-49 Here the consent decree will soon be entering its third decade with no end otherwise in

sight This fact standing alone supports termination of the consent decree

Significant changes occurring during this time also support termination of the consent

decree As described in the previous sections one critical changed circumstance is the Districtrsquos

correction of the systemic violations of the law that originally gave rise to the entry of the

consent decree as well as the Districtrsquos good faith substantial compliance with the decree for a

reasonable time In addition though major structural changes within the agency also constitute

changed circumstances CFSA today is a completely transformed agency The important

structural improvements are described below

23

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

1 Elevated cabinet-level agency By statute CFSA is now a cabinet-level

agency whereas formerly it was just a division of the Department of Human Services See

DC Code sect 4-130301 et seq (2001 ed) This enhances the agencyrsquos ability to respond to

budgeting staffing and contracting needs and allows it to set its own priorities as an agency

not merely as a division within a larger department For example the legislation creating

CFSA improved the budget process for the agency Since the Receivershiprsquos termination the

agencyrsquos budget has increased including a consistent increase for the last three fiscal years

(See Exh F Budget Reports) As noted by the Court Monitor the agency is adequately

resourced (July 19 2006 Report at 115) In addition the agency has authority over

personnel and contracts See DC Code sect 4-130303(a-1)(8-9) Recently the agency

demonstrated its flexibility to fill vacancies quickly when it reduced its vacancy rate for case

carrying social workers from 23 to 6 (January 5 2009 Report at 5)

2 New investigation system The new legislation also enhanced the

investigation process When this lawsuit was filed the Metropolitan Police Department

(MPD) investigated reports of abuse and the Child and Family Services Division

investigated reports of neglect This bifurcated system ldquocaus[ed] children and families to fall

between the cracksrdquo (July 19 2006 Report at 7) There were significant problems with

record keeping at both MPD and the Division and calls to the Division were frequently

unanswered (Id at 7) The legislation ended the bifurcated investigation system See DC

Code sect 4-130104 Today all reports of abuse and neglect are investigated by CFSA which

operates a hotline 24 hours a day 7 days a week Recently the system was further improved

permitting ldquosupervisors and managers to listen to calls in real time to record calls and

24

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

retrieve individual calls for future reviewrdquo (January 5 2009 Report at 6) In addition as

discussed below the implementation of the information system (FACES) ldquoprovides a way to

track what happens to all calls to the hotline correcting an historic problem of locating and

organizing intake filesrdquo (Id at 8)

3 Improved staffing and reduced caseloads Social worker caseloads have

been reduced dramatically In 1991 the Court found that social worker caseloads ldquogreatly

surpassedrdquo 35-40 families per worker and that one social worker as of January 1991 was

assigned to 69 families composed of 251 children 762 F Supp at 977-78 In marked

contrast as of January 30 2009 the average caseload for case carrying social workers was

just eleven families (Exh A Birdsong Decl at 14) In addition staff vacancies went from

45 in February 1991 762 F Supp at 978 to 6 as of December 18 2008 for case

carrying social workers (January 5 2009 Report at 5) See also July 19 2006 Report at 92

(ldquo[T]he District has increased the number of staff it employs and in doing so has dramatically

decreased the caseloads of case carrying social workers The ratio of supervisors to social

workers has also improved The District now has access to regular data regarding staffing

and caseloads Mangers use these data to make decisions about case assignment and

workload for individual workers and unitsrdquo)

4 Advanced case tracking system It is no longer true as the Court found in

1991 ldquothat the [Divisionrsquos information system] is clearly inadequate for keeping track of the

children in the Districtrsquos foster carerdquo 762 F Supp at 977 In 1999 the District implemented

its Statewide Automated Child Welfare Information System called FACES FACES is a

comprehensive case management database that produces all reporting measures required by

the federal government and generates over 100 reports each month to be used by managers to

25

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

monitor case management activities In 2006 the District became the first jurisdiction to

have its system fully accessible by the internet See July 19 2006 Report at 113 (noting that

FACES was certified by the federal government and FACESNET was the first internet based

system certified by the federal government)

5 New regulations for foster and group homes Since the termination of the

Receivership CFSA has enacted regulations that govern foster homes group homes and

independent living facilities See generally 29 DCMR sectsect 6000 et seq 6200 et seq 6300

et seq The regulations set forth specific criteria for licensing these homes and facilities

6 Internal and external monitoring Since the termination of the

Receivership CFSA has developed internal quality assurance to review case practice and

agency performance The Court Monitor noted this systemic change within the agency

ldquoCFSA has also developed internal capacity to carry out quality assurance functions required

to assess the quality of case practicerdquo (July 19 2006 Report at 86) The Monitor has also

previously noted her own reliance on data produced by the agency through FACES to

establish performance levels The agency publishes many of its reports online at

httpwwwcfsadcgovcfsacwpviewa3q614813cfsaNav|31321|asp In addition to its

internal capacity to review its work the agency is reviewed by the federal government The

January 2008 Child and Family Services Review (CFSR) report conducted by the US

Department of Health and Human Services is available through the CFSA website The

CFSR review provided ldquofindings relevant to the Districtrsquos performance in achieving specified

outcomes for children in the areas of safety permanency and well-being and an

assessment of the systemic factors relevant to the child welfare agencyrsquos ability to

achieve positive outcomes for childrenrdquo (CFSR at 2) Moreover the agency is reviewed at

26

least twice per year by the Council for the District of Columbia through both oversight and

budget hearings

7 Improved legal functions Two significant systemic changes have

improved the legal functions of CFSA First the Office of the Attorney General (formerly

the Office of the Corporation Counsel) significantly increased the number of attorneys

dedicated to handle abuse and neglect cases Those attorneys are co-located with CFSA to

better work with the agency See July 19 2006 Report at 71 (noting the progress made with

the co-location) Second the creation of the Family Court for the District of Columbia has

ldquovastly improved collaboration with the Courtrdquo (Id)

As reflected in these structural improvements the agencyrsquos transformation constitutes

changed circumstances warranting the termination of the consent decree

E The Costs of Court Supervision Are No Longer Justifiable in Light of Current Financial Constraints

Termination is also warranted to relieve the District of the legal and administrative

expenses of court supervision In deciding whether to terminate or substantially modify the

consent decree and defendantsrsquo obligations thereunder it is appropriate for the Court to take into

consideration changed conditions including economic circumstances that make it substantially

more onerous to comply or abide by the decree Rufo 502 US at 392-93 This is especially so

when as here local officials in charge of institutional litigation ldquomay agree to do more than that

that which is minimally required by the [applicable law] to settle a case and avoid further

litigationrdquo Id at 392

27

In this context a governmentrsquos financial constraints are a highly relevant factor in

considering termination or modification of a consent decree In Rufo the Supreme Court

rejected the view that fiscal problems are ldquoonly marginally relevantrdquo in this regard Id The

Court explained ldquoFinancial constraints may not be used to justify the creation or perpetuation of

constitutional violations but they are a legitimate concern of government defendants in

institutional reform litigation and therefore are appropriately tailored in a consent decree

modificationrdquo Id at 392-93

Current financial constraints are an appropriate consideration in this case This Court

should take into account the publicly documented and indisputable current economic climate and

concomitant financial constraints on the District as a result of these economic conditions Those

constraints make it more difficult for the District to absorb the legal and administrative expenses

incurred by court supervision By any standard the collective payments to the Court Monitor

and plaintiffsrsquo attorneysrsquo over the years have been extraordinary The table below captures just

some of those payments and reflects that since 1999 the District has paid over $7 million to the

Court Monitor (CSSP) and plaintiffsrsquo attorneys (CRI)

Fiscal Year CSSP CRI Total 1999 $27842400 $27842400 2000 $22487800 $22487800 2001 $53431652 $193959325 $247390977 2002 $59202359 $3847500 $63049859 2003 $33702900 $11111611 $44814511 2004 $44658006 $44658006 2005 $63000739 $9880000 $72880739 2006 $44236409 $5544550 $49780959 2007 $62123991 $21600000 $83723991 2008 $58562205 $5300000 $63862205 2009 $22158460 $13612500 $35770960 Grand Total $491406921 $264855486 $7562624075

5 The payments to CRI reflected in the chart may not include all fees paid between 1999 and 2009 but they do reflect payments that can be determined from prior Court Orders The 2001 payment amount to CRI includes a settlement between the parties

28

(See Exh G Singer Decl for all financial data cited herein except as noted in footnote 5) In

addition to the foregoing which represent actual payments CFSA has in 2009 allocated a total of

$615550 for payments to CSSP Moreover by consuming the time and resources of

government lawyers and officials the present process-intensive court monitoring also imposes

other significant though less-quantifiable financial costs

These continuing expenses and the corresponding drain on scarce District resources

must be considered against the backdrop of the current fiscal crisis in the City The budget gap

for 2009 and the much more significant ldquoshortfallrdquo problem for 2010 have been publicly well

documented and are based on available information from the Districtrsquos City Administrator and

the Office of Chief Financial Officer as set forth below

1 First FY 2009 Gap-Closing Plan

In September 2008 the Chief Financial Officer issued a revised quarterly revenue

estimate certifying a shortfall of $1307 million in FY 2009 Local Fund revenues

2 Second FY 2009 Revenue Gap

In December 2008 the Chief Financial Officer issued a subsequent revised quarterly

revenue estimate This estimate certified a further decline in projected revenues and a second

(additional) revenue shortfall of $1271 million in FY 2009 The next quarterly revenue estimate

is expected in late February The combined effect of the September and December revenue

estimates is shown on the table below

29

Table 1 Local Fund Revenue estimates Original to Current FY 2009 FY 2010 May estimate $5562900000 $5831700000 Sept revision ($130700000) ($152000000) Dec revision ($127100000) ($303800000) Total effect on Sept amp Dec revisions ($257800000) ($455800000)Sept amp Dec Revisions as of May estimate -46 -78

As this Court is well aware these declining revenue estimates and resulting economic

woes are not unique to the District rather they are a product of clear trends in leading economic

indicators most notably a severe decline in stock market indices and a rising unemployment rate

It is clear that the foreseeable economic climate presents the greatest fiscal challenge the District

has faced in the post-Control Board era It is only appropriate that this Court following the

clear instruction in Rufo consider such economic factors as further basis for establishing a

process to terminate the consent decree

CONCLUSION

For the foregoing reasons the time has arrived for the final conclusion of this case The

basis purpose of the consent decree has been achieved the District has shown its good faith

compliance and the entire factual and legal landscape upon which the consent decree was based

has shifted dramatically over the course of two decades The extraordinary and continuing costs

of court oversight are not simply financial but also include the diversion of limited agency

resources from program development and implementation as well as the erosion of separation of

powers and democratic accountability Under present circumstances these ever-increasing costs

of court oversight are no longer justifiable and overwhelmingly support termination of the

consent decree

30

Accordingly the defendants respectfully request a definitive timeline to end court

supervision within a year In furtherance of this goal the Court should approve the Districtrsquos

six-month plan with addendum and upon its conclusion adopt specific exit criteria narrowly

designed to address any remaining District law violations The defendants also request that the

time set for any monitoring of exit criteria be brief and thereupon the consent decree be

terminated in its entirety and this case closed

Respectfully submitted

PETER J NICKLES Attorney General for the District of Columbia

GEORGE C VALENTINE

Deputy Attorney General Civil Litigation Division s

ELLEN EFROS [250746] Chief Equity I Section

s RICHARD S LOVE [340455] Senior Assistant Attorney General Office of the Solicitor General Office of the Attorney General DC

s LUCY PITTMAN [483416] Assistant Attorney General 441 4th Street NW 6th Floor South Washington DC 20001 (202) 442-9891 (telephone) (202) 730-1436 (fax) lucypittmandcgov

31

In this context a governmentrsquos financial constraints are a highly relevant factor in

considering termination or modification of a consent decree In Rufo the Supreme Court

rejected the view that fiscal problems are ldquoonly marginally relevantrdquo in this regard Id The

Court explained ldquoFinancial constraints may not be used to justify the creation or perpetuation of

constitutional violations but they are a legitimate concern of government defendants in

institutional reform litigation and therefore are appropriately tailored in a consent decree

modificationrdquo Id at 392-93

Current financial constraints are an appropriate consideration in this case This Court

should take into account the publicly documented and indisputable current economic climate and

concomitant financial constraints on the District as a result of these economic conditions Those

constraints make it more difficult for the District to absorb the legal and administrative expenses

incurred by court supervision By any standard the collective payments to the Court Monitor

and plaintiffsrsquo attorneysrsquo over the years have been extraordinary The table below captures just

some of those payments and reflects that since 1999 the District has paid over $7 million to the

Court Monitor (CSSP) and plaintiffsrsquo attorneys (CRI)

Fiscal Year CSSP CRI Total 1999 $27842400 $27842400 2000 $22487800 $22487800 2001 $53431652 $193959325 $247390977 2002 $59202359 $3847500 $63049859 2003 $33702900 $11111611 $44814511 2004 $44658006 $44658006 2005 $63000739 $9880000 $72880739 2006 $44236409 $5544550 $49780959 2007 $62123991 $21600000 $83723991 2008 $58562205 $5300000 $63862205 2009 $22158460 $13612500 $35770960 Grand Total $491406921 $264855486 $7562624075

5 The payments to CRI reflected in the chart may not include all fees paid between 1999 and 2009 but they do reflect payments that can be determined from prior Court Orders The 2001 payment amount to CRI includes a settlement between the parties

28

(See Exh G Singer Decl for all financial data cited herein except as noted in footnote 5) In

addition to the foregoing which represent actual payments CFSA has in 2009 allocated a total of

$615550 for payments to CSSP Moreover by consuming the time and resources of

government lawyers and officials the present process-intensive court monitoring also imposes

other significant though less-quantifiable financial costs

These continuing expenses and the corresponding drain on scarce District resources

must be considered against the backdrop of the current fiscal crisis in the City The budget gap

for 2009 and the much more significant ldquoshortfallrdquo problem for 2010 have been publicly well

documented and are based on available information from the Districtrsquos City Administrator and

the Office of Chief Financial Officer as set forth below

1 First FY 2009 Gap-Closing Plan

In September 2008 the Chief Financial Officer issued a revised quarterly revenue

estimate certifying a shortfall of $1307 million in FY 2009 Local Fund revenues

2 Second FY 2009 Revenue Gap

In December 2008 the Chief Financial Officer issued a subsequent revised quarterly

revenue estimate This estimate certified a further decline in projected revenues and a second

(additional) revenue shortfall of $1271 million in FY 2009 The next quarterly revenue estimate

is expected in late February The combined effect of the September and December revenue

estimates is shown on the table below

29

Table 1 Local Fund Revenue estimates Original to Current FY 2009 FY 2010 May estimate $5562900000 $5831700000 Sept revision ($130700000) ($152000000) Dec revision ($127100000) ($303800000) Total effect on Sept amp Dec revisions ($257800000) ($455800000)Sept amp Dec Revisions as of May estimate -46 -78

As this Court is well aware these declining revenue estimates and resulting economic

woes are not unique to the District rather they are a product of clear trends in leading economic

indicators most notably a severe decline in stock market indices and a rising unemployment rate

It is clear that the foreseeable economic climate presents the greatest fiscal challenge the District

has faced in the post-Control Board era It is only appropriate that this Court following the

clear instruction in Rufo consider such economic factors as further basis for establishing a

process to terminate the consent decree

CONCLUSION

For the foregoing reasons the time has arrived for the final conclusion of this case The

basis purpose of the consent decree has been achieved the District has shown its good faith

compliance and the entire factual and legal landscape upon which the consent decree was based

has shifted dramatically over the course of two decades The extraordinary and continuing costs

of court oversight are not simply financial but also include the diversion of limited agency

resources from program development and implementation as well as the erosion of separation of

powers and democratic accountability Under present circumstances these ever-increasing costs

of court oversight are no longer justifiable and overwhelmingly support termination of the

consent decree

30

Accordingly the defendants respectfully request a definitive timeline to end court

supervision within a year In furtherance of this goal the Court should approve the Districtrsquos

six-month plan with addendum and upon its conclusion adopt specific exit criteria narrowly

designed to address any remaining District law violations The defendants also request that the

time set for any monitoring of exit criteria be brief and thereupon the consent decree be

terminated in its entirety and this case closed

Respectfully submitted

PETER J NICKLES Attorney General for the District of Columbia

GEORGE C VALENTINE

Deputy Attorney General Civil Litigation Division s

ELLEN EFROS [250746] Chief Equity I Section

s RICHARD S LOVE [340455] Senior Assistant Attorney General Office of the Solicitor General Office of the Attorney General DC

s LUCY PITTMAN [483416] Assistant Attorney General 441 4th Street NW 6th Floor South Washington DC 20001 (202) 442-9891 (telephone) (202) 730-1436 (fax) lucypittmandcgov

31

(See Exh G Singer Decl for all financial data cited herein except as noted in footnote 5) In

addition to the foregoing which represent actual payments CFSA has in 2009 allocated a total of

$615550 for payments to CSSP Moreover by consuming the time and resources of

government lawyers and officials the present process-intensive court monitoring also imposes

other significant though less-quantifiable financial costs

These continuing expenses and the corresponding drain on scarce District resources

must be considered against the backdrop of the current fiscal crisis in the City The budget gap

for 2009 and the much more significant ldquoshortfallrdquo problem for 2010 have been publicly well

documented and are based on available information from the Districtrsquos City Administrator and

the Office of Chief Financial Officer as set forth below

1 First FY 2009 Gap-Closing Plan

In September 2008 the Chief Financial Officer issued a revised quarterly revenue

estimate certifying a shortfall of $1307 million in FY 2009 Local Fund revenues

2 Second FY 2009 Revenue Gap

In December 2008 the Chief Financial Officer issued a subsequent revised quarterly

revenue estimate This estimate certified a further decline in projected revenues and a second

(additional) revenue shortfall of $1271 million in FY 2009 The next quarterly revenue estimate

is expected in late February The combined effect of the September and December revenue

estimates is shown on the table below

29

Table 1 Local Fund Revenue estimates Original to Current FY 2009 FY 2010 May estimate $5562900000 $5831700000 Sept revision ($130700000) ($152000000) Dec revision ($127100000) ($303800000) Total effect on Sept amp Dec revisions ($257800000) ($455800000)Sept amp Dec Revisions as of May estimate -46 -78

As this Court is well aware these declining revenue estimates and resulting economic

woes are not unique to the District rather they are a product of clear trends in leading economic

indicators most notably a severe decline in stock market indices and a rising unemployment rate

It is clear that the foreseeable economic climate presents the greatest fiscal challenge the District

has faced in the post-Control Board era It is only appropriate that this Court following the

clear instruction in Rufo consider such economic factors as further basis for establishing a

process to terminate the consent decree

CONCLUSION

For the foregoing reasons the time has arrived for the final conclusion of this case The

basis purpose of the consent decree has been achieved the District has shown its good faith

compliance and the entire factual and legal landscape upon which the consent decree was based

has shifted dramatically over the course of two decades The extraordinary and continuing costs

of court oversight are not simply financial but also include the diversion of limited agency

resources from program development and implementation as well as the erosion of separation of

powers and democratic accountability Under present circumstances these ever-increasing costs

of court oversight are no longer justifiable and overwhelmingly support termination of the

consent decree

30

Accordingly the defendants respectfully request a definitive timeline to end court

supervision within a year In furtherance of this goal the Court should approve the Districtrsquos

six-month plan with addendum and upon its conclusion adopt specific exit criteria narrowly

designed to address any remaining District law violations The defendants also request that the

time set for any monitoring of exit criteria be brief and thereupon the consent decree be

terminated in its entirety and this case closed

Respectfully submitted

PETER J NICKLES Attorney General for the District of Columbia

GEORGE C VALENTINE

Deputy Attorney General Civil Litigation Division s

ELLEN EFROS [250746] Chief Equity I Section

s RICHARD S LOVE [340455] Senior Assistant Attorney General Office of the Solicitor General Office of the Attorney General DC

s LUCY PITTMAN [483416] Assistant Attorney General 441 4th Street NW 6th Floor South Washington DC 20001 (202) 442-9891 (telephone) (202) 730-1436 (fax) lucypittmandcgov

31

Table 1 Local Fund Revenue estimates Original to Current FY 2009 FY 2010 May estimate $5562900000 $5831700000 Sept revision ($130700000) ($152000000) Dec revision ($127100000) ($303800000) Total effect on Sept amp Dec revisions ($257800000) ($455800000)Sept amp Dec Revisions as of May estimate -46 -78

As this Court is well aware these declining revenue estimates and resulting economic

woes are not unique to the District rather they are a product of clear trends in leading economic

indicators most notably a severe decline in stock market indices and a rising unemployment rate

It is clear that the foreseeable economic climate presents the greatest fiscal challenge the District

has faced in the post-Control Board era It is only appropriate that this Court following the

clear instruction in Rufo consider such economic factors as further basis for establishing a

process to terminate the consent decree

CONCLUSION

For the foregoing reasons the time has arrived for the final conclusion of this case The

basis purpose of the consent decree has been achieved the District has shown its good faith

compliance and the entire factual and legal landscape upon which the consent decree was based

has shifted dramatically over the course of two decades The extraordinary and continuing costs

of court oversight are not simply financial but also include the diversion of limited agency

resources from program development and implementation as well as the erosion of separation of

powers and democratic accountability Under present circumstances these ever-increasing costs

of court oversight are no longer justifiable and overwhelmingly support termination of the

consent decree

30

Accordingly the defendants respectfully request a definitive timeline to end court

supervision within a year In furtherance of this goal the Court should approve the Districtrsquos

six-month plan with addendum and upon its conclusion adopt specific exit criteria narrowly

designed to address any remaining District law violations The defendants also request that the

time set for any monitoring of exit criteria be brief and thereupon the consent decree be

terminated in its entirety and this case closed

Respectfully submitted

PETER J NICKLES Attorney General for the District of Columbia

GEORGE C VALENTINE

Deputy Attorney General Civil Litigation Division s

ELLEN EFROS [250746] Chief Equity I Section

s RICHARD S LOVE [340455] Senior Assistant Attorney General Office of the Solicitor General Office of the Attorney General DC

s LUCY PITTMAN [483416] Assistant Attorney General 441 4th Street NW 6th Floor South Washington DC 20001 (202) 442-9891 (telephone) (202) 730-1436 (fax) lucypittmandcgov

31

Accordingly the defendants respectfully request a definitive timeline to end court

supervision within a year In furtherance of this goal the Court should approve the Districtrsquos

six-month plan with addendum and upon its conclusion adopt specific exit criteria narrowly

designed to address any remaining District law violations The defendants also request that the

time set for any monitoring of exit criteria be brief and thereupon the consent decree be

terminated in its entirety and this case closed

Respectfully submitted

PETER J NICKLES Attorney General for the District of Columbia

GEORGE C VALENTINE

Deputy Attorney General Civil Litigation Division s

ELLEN EFROS [250746] Chief Equity I Section

s RICHARD S LOVE [340455] Senior Assistant Attorney General Office of the Solicitor General Office of the Attorney General DC

s LUCY PITTMAN [483416] Assistant Attorney General 441 4th Street NW 6th Floor South Washington DC 20001 (202) 442-9891 (telephone) (202) 730-1436 (fax) lucypittmandcgov

31